apothecary development corp. v. city of marco island, 12-12616, 2013 wl 1789549 (11th cir. apr. 29,...
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT________________________
No. 12-12616________________________
D.C. Docket No. 2:10-cv-00392-UA-DNF
APOTHECARY DEVELOPMENT CORPORATION,d.b.a. Island Drug,LARRY G. HEINE,SUSAN K. HEINE,
Plaintiffs - Appellees,
versus
CITY OF MARCO ISLAND FLORIDA,
Defendant,
THOM CARR,individually and as Chief of Police of Marco Island, Florida,
Defendant - Appellant.________________________
Appeal from the United States District Courtfor the Middle District of Florida________________________
(April 29, 2013)
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Before DUBINA, Chief Judge, BARKETT and KLEINFELD,* Circuit Judges.
PER CURIAM:
Appellant Thom Carr appeals the district courts denial of his motion to
dismiss Appellee Apothecary Development Corporation d/b/a Island Drug, Larry
G. Heine, and Susan K. Heines (collectively Plaintiffs) 42 U.S.C. 1983
complaint. Carr argues that Plaintiffs failed to assert violations of clearly
established constitutional rights and that he is entitled to qualified immunity. We
agree with Carr that Plaintiffs have failed to properly allege a violation of their
equal protection rights. However, we also agree with the district courts order that
Plaintiffs have properly alleged violations of their substantive due process rights
and that dismissal based on qualified immunity at this stage in the proceedings
would be premature. Accordingly, we affirm in part and reverse in part the district
courts order denying Carrs motion to dismiss.
I.
In their second amended 1983 complaint, Plaintiffs allege that from June
9, 2010, Carr, along with other members of the Marco Police department, began a
systematic police operation designed to harass Island Drug and disturb its
business operations. [R. 47 9.] The district court summarized Plaintiffs
allegations in this regard, explaining that they:
* Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit,sitting by designation.
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include posting police vehicles in conspicuous locations near thebusiness premises so as to inhibit patronage; issuing trespasswarnings, searching, and threatening to arrest Plaintiffs customerswithout reasonable suspicion, probable cause, or legal justification ofany kind; harassing and accosting Plaintiffs customers inside andoutside of the business premises; demanding Plaintiffs cease fillinglawful prescriptions for non-local residents; and threatening to closedown business operations.
[R. 57 at 2.]
The district court found that Plaintiffs complaint properly pleaded
violations of both their substantive due process and equal protection rights. The
district court also found that dismissal based on qualified immunity was not
warranted. This appeal follows.
II.
We reviewde novo the district courts denial of Carrs motion to dismiss
based on qualified immunity. See Maggio v. Sipple, 211 F.3d 1346, 1350 (11th
Cir. 2000). An appellate court reviewing the denial of the defendants claim of
immunity need not consider the correctness of the plaintiffs version of the facts,
nor even determine whether the plaintiffs allegations actually state a claim,
rather, we must determine only whether the legal norms allegedly violated by the
defendant were clearly established at the time of the challenged actions. Mitchell
v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816 (1985); see also Keating v.
City of Miami, 598 F.3d 753, 760 (11th Cir. 2010) (noting that [t]his Courts
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appellate jurisdiction in matters challenging the denial of qualified immunity in a
motion to dismiss extends only to the legal issues surrounding the district courts
denial of [the defendants motion] to dismiss, i.e., issues concerning whether [the
plaintiffs] complaint sufficiently alleged the violation of a clearly established
right (internal quotation marks omitted)).
III.
Looking at the four corners of the complaint, and taking its allegations to be
true, we agree with the district court that at this stage of the proceedings, Plaintiffs
have provided sufficient facts to establish a violation of their substantive due
process rights. The complaint alleges that as a result of Carrs actions, Plaintiffs
have lost the freedom to pursue the livelihood of their choice. If true, such
behavior is a violation of a clearly established constitutional right. See Buxton v.
City of Plant City, Fla., 871 F.2d 1037, 1045 (11th Cir. 1989) (noting that the
Fourteenth Amendments due process clause guarantees citizens the right to be
free in the enjoyment of all his facilities; to be free to use them in all lawful ways;
to live and work where he will; to earn his livelihood by any lawful calling; and to
pursue any livelihood or avocation). Accordingly, Plaintiffs substantive due
process allegations survive Carrs motion to dismiss.
IV.
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Plaintiffs equal protections claims, however, do not survive, because they
have failed to provide sufficient facts to establish a violation of their equal
protection rights.
Plaintiffs assert that Carr violated its equal protection rights because eight
other similarly situated pharmacies were not targeted by police. Although not
addressed by the district court, Plaintiffs have asserted a class of one claim. [A]
class of one claim involves a plaintiff who alleges that [it] has been intentionally
treated differently from others similarly situated and that there is no rational basis
for the difference in treatment. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1202
(11th Cir. 2007) (quotingVill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.
Ct. 1073, 1074 (2000)). In cases that involve a qualified immunity defense,
plaintiffs who fail to allege both elements of a class of one equal protection
claim have not met their burden of showing that the defendants conduct violated a
constitutional right. Id.
Plaintiffs complaint baldly asserts that the alleged harassing behavior is
being directed at and executed against Plaintiffs and their customers only, and not
against similarly situated pharmacies, employees and customers in the Marco
Island area. [R. 47 10q.] This is insufficient. Bare allegations that other
[pharmacies], even all other [pharmacies], were treated differently do not state an
equal protection claim; a complaint must attempt to show in some fashion that
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these other [pharmacies] were situated similarly to the plaintiff. GJR Invs., Inc.
v. Cnty. of Escambia,Fla., 132 F.3d 1359, 1367-68 (11th Cir. 1998), abrogated on
other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009).
Accordingly, Plaintiffs equal protection claim must fail.
V.
We agree with the district court that dismissal of Plaintiffs complaint based
on qualified immunity grounds at the motion-to-dismiss stage is not appropriate in
this case. Qualified immunity offers complete protection for government officials
sued in their individual capacities when acting within their discretionary authority
if their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known. Mann v. Taser Intl,
Inc., 588 F.3d 1291, 1305 (11th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S. Ct. 2727, 2738 (1982)). As stated, Plaintiffs complaint has
sufficiently pleaded facts that, taken as true, violate Plaintiffs clearly established
substantive due process rights. As such, the district court was correct to deny
qualified immunity at this stage of the proceedings.
The district courts order isAFFIRMED IN PART, REVERSED IN
PART, AND REMANDED FOR PROCEEDINGS CONSISTENT WITH
THIS OPINION.
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UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING56 Forsyth Street, N.W.Atlanta, Georgia 30303
John Ley
Clerk of Court
April 29, 2013
For rules and forms visi
www.ca11.uscourts.gov
MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 12-12616-DDCase Style: Apothecary Development Corpora, et al v. Thom CarrDistrict Court Docket No: 2:10-cv-00392-UA-DNF
On April 1, 2013, this Court beganMANDATORY electronic filing. All counsel are required to file documentselectronically in appeals pending on April 1, 2013, and in appeals docketed in this Court on or after that date, unlessexempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day
been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition forrehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings,a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the timespecified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of amotion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete listof all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petitionfor rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJ A voucher claiming compensation for timespent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of apetition for a writ of certiorari (whichever is later).
Pursuant to Fed.R.App.P. 39, each party to bear own costs.
The Bill of Costs form is available on the internet atwww.ca11.uscourts.gov
For questions concerning the issuance of the decision of this court, please call the number referenced in the signatureblock below. For all other questions, please call Tonya L. Richardson, DD at (404) 335-6135.
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Djuanna ClarkPhone #: 404-335-6161
OPIN-1A Issuance of Opinion With Costs
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