apothecary development corp. v. city of marco island, 12-12616, 2013 wl 1789549 (11th cir. apr. 29,...

7/30/2019 Apothecary Development Corp. v. City of Marco Island, 12-12616, 2013 WL 1789549 (11th Cir. Apr. 29, 2013)

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[DO NOT PUBLISH]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)

Case: 12-12616 Date Filed: 04/29/2013 Page: 1 of 6


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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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apothecary development corp. v. city of marco island, 12-12616, 2013 wl 1789549 (11th cir. apr. 29,...

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