Brian Helm v. Charles Liem , 523 F. App'x 643 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12748
Non-Argument Calendar
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D.C. Docket No. 2:10-cv-00288-JES-SPC
BRIAN HELM,
Plaintiff-Appellant,
versus
CHARLIE LIEM,
In his official capacity as Interim
Secretary of Florida Department of
Business & Professional Regulation,
MAURA BOLIVAR,
In her individual capacity as Chief Attorney,
SERGIO GONZALEZ,
In his individual capacity as Regional
Program Administrator, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(July 15, 2013)
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Before CARNES, BARKETT, and ANDERSON, Circuit Judges.
PER CURIAM:
Brian Helm, proceeding pro se, appeals the district court’s dismissal with
prejudice of his 42 U.S.C. § 1983 civil rights complaint that he brought against 13
employees of the Florida Department of Business and Professional Regulation (the
“DBPR”), the Florida Attorney General’s Office, and the Florida Board of
Accountancy in their individual capacities. On appeal, Helm argues that the
district court erred in finding that Charlie Liem, Maura Bolivar, Sergio Gonzalez,
Sandra Green, April Skilling, Jennifer Tschetter, Ned Luczynski, John
Washington, Thomas O’Bryant, Ron Russo, Veloria Kelly, Tim Vaccaro, and
Jerold Wilson (collectively, the “state employees”) were immune from suit under
the Eleventh Amendment as to all but one claim and, alternatively, that they were
entitled to qualified immunity on all claims. Helm further contends that the district
court erred in dismissing his complaint with prejudice.
We review a district court’s dismissal for failure to state a claim based on
qualified immunity de novo. Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir.
2003). We review a district court’s refusal to grant leave to amend for abuse of
discretion. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1336
(11th Cir. 2010). Qualified immunity shields government officials from civil
liability when: (1) the government official was acting within the scope of his
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discretionary authority; and (2) the official’s conduct does not “violate clearly
established statutory or constitutional rights.” See Goebert v. Lee Cnty., 510 F.3d
1312, 1329 (11th Cir. 2007) (quotation omitted). As a threshold matter, to receive
qualified immunity, a public official must prove “that he was acting within the
scope of his discretionary authority when the allegedly wrongful acts occurred.”
Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 n.14 (11th Cir. 2010)
(quotation omitted). “The scope-of-authority inquiry is not whether it was within
the defendant’s authority to commit the allegedly illegal act.” Grider v. City of
Auburn, Ala., 618 F.3d 1240, 1262 n.33 (11th Cir. 2010) (quotations omitted).
Instead, we look “to the general nature of the defendant’s action, temporarily
putting aside the fact that it may have been committed for an unconstitutional
purpose, in an unconstitutional manner, to an unconstitutional extent, or under
constitutionally inappropriate circumstances.” Id. (quotation omitted). Once a
government official “establishes that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show that qualified immunity is not
appropriate” by showing that a constitutional right was violated and that the
constitutional right was “clearly established.” Lee v. Ferraro, 284 F.3d 1188, 1194
(11th Cir. 2002).
A plaintiff can show that a right was clearly established in several ways.
Mercado v. City of Orlando, 407 F.3d 1152, 1158-59 (11th Cir. 2005). “First, he
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can show that a materially similar case has already been decided . . . .” Id. at 1159.
Second, he can “show that a broader, clearly established principle should control
the novel facts in this situation.” Id. Finally, he can show that the conduct so
obviously violates the constitution that prior case law is unnecessary. Id.
The district court did not err in finding that the state employees were entitled
to qualified immunity. Helm maintains that the state employees deprived him of
his fundamental right to work as a laborer and enter contracts, a substantive due
process claim, and failed to provide him an adequate opportunity to contest the
notice to cease and desist, a procedural due process claim. But the right to work in
a specific profession is not a fundamental right. Cf. Mass. Bd. of Retirement v.
Murgia, 427 U.S. 307, 313, 96 S. Ct. 2562, 2566-67, 49 L. Ed. 2d 520 (1976).
Helm’s argument also hinges on the repudiated notion of substantive economic due
process.1 See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560
U.S. ___, ___, 130 S. Ct. 2592, 2606, 177 L. Ed. 2d 184 (2010) (noting that the
Supreme Court has held “for many years . . . that the liberties protected by
Substantive Due Process do not include economic liberties” (quotation omitted)).
Helm also was not deprived of procedural due process because he had the
opportunity to contest the notice to cease and desist at his misdemeanor criminal
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Helm also appears to misread to word “contracting” in the notice to cease and desist as
preventing him from entering into all contracts. To the extent that this is his argument, the
notice to cease and desist clearly informed Helm to cease the practice of contracting without a
license because it is a violation of Florida law to practice as a “Certified General Contractor”
without a license, and in no way prohibited Helm from entering into all contracts.
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trial where he was convicted for contracting without a license, and the notice itself
provides that should the DBPR seek to enforce the notice it will do so through
proceedings in court.
We have held that a district court need not allow an amendment “(1) where
there has been undue delay, bad faith, dilatory motive, or repeated failure to cure
deficiencies by amendments previously allowed; (2) where allowing amendment
would cause undue prejudice to the opposing party; or (3) where amendment
would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
The district court also did not abuse its discretion in dismissing Helm’s
complaint with prejudice because he repeatedly failed to cure the deficiencies in
his complaint, and allowing him further attempts to amend would be futile. See
Bryant, 252 F.3d at 1163.
Because we hold that the district court properly dismissed Helm’s complaint
with prejudice based on qualified immunity, we decline to address whether the
state employees were also entitled to Eleventh Amendment immunity. See United
States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008) (holding that “we may
affirm for any reason supported by the record” (quotation omitted)); see also
GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1251 n.13 (11th Cir. 2012),
cert denied, 133 S. Ct. 856 (2013) (declining to address the Eleventh Amendment
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issue because none of the plaintiff’s counts stated a claim to relief). Accordingly,
we affirm.
AFFIRMED.
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