Robert Kelvin Lindbloom v. Manatee County ( 2020 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12680
Non-Argument Calendar
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D.C. Docket No. 8:18-cv-02642-WFJ-AEP
ROBERT KELVIN LINDBLOOM,
Plaintiff–Appellant,
versus
MANATEE COUNTY,
a political Subdivision of the State
of Florida, TANYA SHAW, et al.,
Defendants–Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 31, 2020)
Before WILLIAM PRYOR, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Robert Lindbloom, proceeding pro se on appeal, appeals the district court’s
dismissal of his pro se complaint under 42 U.S.C. § 1983, which challenged the
constitutionality of Florida’s Local Government Code Enforcement Boards Act,
Fla. Stat. §§ 162.01–.13, and alleged that his due process and civil rights were
violated at a Manatee County, Florida, Code Enforcement Division hearing.
Lindbloom argues that the district court erred in dismissing his complaint for
failure to state a claim because the code enforcement hearing violated his due
process rights and the individual defendants were not entitled to qualified
immunity. Lindbloom also argues that the district court erred in dismissing his
complaint for failure to state a claim because he successfully challenged the
constitutionality of Florida’s Local Government Code Enforcement Boards Act.
We address each in turn and affirm the district court’s dismissal of Lindbloom’s
complaint.
I. BACKGROUND
Because we solely write for the benefit of the parties, we provide only as
much detail as is necessary for us to reach our decision. Lindbloom, a property
owner in Manatee County, Florida, received two notices of violation on July 31,
2018, from the county government for having large amounts of trash and debris in
his yard and for having an unsound roof. The notices, which were sent to
Lindbloom by certified mail, made clear that Lindbloom needed to clean the entire
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property to remove the trash and debris and make his roof weatherproof and free
from defects by August 10, 2018. Subsequent re-inspections revealed that the
violations remained uncorrected after the deadline and the county issued notices of
hearing to Lindbloom by certified mail and email.
The hearing took place on September 26, 2018, with Lindbloom in
attendance, and was transcribed. Tanya Shaw, an officer with the county’s Code
Enforcement Division, outlined the alleged violations and presented photographs
of Lindbloom’s house. Lindbloom had an opportunity to respond, and requested a
“VGA cable” to plug his computer into. Katharine Zamboni, an Assistant Manatee
County Attorney, informed Lindbloom that he needed to provide them with a copy
of anything he wished to present. She asked if that would be a problem, and
Lindbloom said that it would not be. He then said that he wanted to “make a
fourth request for a hearing aid,” which he said he assumed would be provided by
the Americans with Disabilities Act, and said that he could not hear any of the
hearing.
Lindbloom argued that none of the photographs “represent current
conditions.” When Shaw disagreed, he replied that he would “bring her back on
perjury charges because there’s been a lot of stuff done here.” He then advised the
magistrate judge that he had “major surgery” and was “here against doctor’s
orders.” He was advised that, even if the photographs presented by Shaw did not
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represent current conditions, he would have about a month to make the necessary
changes, and that fines would only start accruing at that point. Lindbloom
conceded that debris remained on his lawn and that he was “in the middle of trying
to fix some storm damage.” He further objected to the photographs on the ground
that they were “taken with a zoom, which means she entered through my property
electronically and took these pictures.” He questioned what a structure was, and
whether his roof was a part of his house’s structure, which the magistrate advised
him it was.
The magistrate informed Lindbloom that he found that the house was not in
compliance and that Shaw, or another code enforcement officer, would conduct re-
inspections to verify compliance. He gave Lindbloom until October 19, 2018, to
correct the noncompliance; if it was not corrected by that point, a fine of $50 per
day would be assessed for each violation, with a $20,000 cap. Lindbloom
indicated that he would appeal the decision and that he “could not understand the
first part of” the hearing. Zamboni advised him that he said that he “wished to go
forward” with the hearing, and the magistrate told him that while he may not have
been able to hear, the order adequately set out the violation. Lindbloom did not
bring his property into compliance by the deadline and was assessed daily fees
until February 19, 2019, at which point a $4,778.50 fee, along with $28.50 in
recording fees, was imposed as a lien against his property.
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Lindbloom did not appeal the magistrate’s order, instead filing a pro se
complaint in the instant case on October 29, 2018. He filed a second amended
complaint on April 25, 2019, which serves as the operative complaint in this case.
He alleged that his First and Fourth Amendment rights, his due process rights, and
the Americans with Disabilities Act were violated, and that Manatee County
Ordinance 15-10, adopted pursuant to Florida Statutes §§ 162.01–.13, were
unconstitutional. In support of these claims, Lindbloom asserted a litany of
arguments, which we do not endeavor to voluminously or exclusively recount.
Manatee County moved to dismiss the second amended complaint for failure
to state a claim. Specifically, it argued that his procedural due process claim was
unavailable because there was an adequate remedy under state law—namely, he
could appeal the determination to the state circuit court. As to the substantive due
process claim, it argued that Lindbloom’s constitutional rights were not violated.
It also argued that the individual defendants were entitled to qualified immunity
and that Lindbloom’s claims under the Florida Constitution—excessive fines and a
violation of his right to privacy—were not sufficiently alleged because he made no
showing that the fine was disproportionate or that he had a legitimate expectation
of privacy in the description of the debris around his property. The district court
granted the motion to dismiss with prejudice. Lindbloom timely appealed to us.
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II. DISCUSSION
A. Due Process Claims
We review de novo a district court’s dismissal of a complaint for failure to
state a claim. Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir.
2016). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). The complaint is viewed in the light most favorable to the
plaintiff, and all the plaintiff’s well pleaded facts are accepted as true. Am. United
Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). Further, pro se
pleadings are held to a less strict standard than counseled pleadings and are
liberally construed. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
However, in order to survive a motion to dismiss, the plaintiff’s complaint must
contain facts sufficient to support a plausible claim to relief. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). The district court must accept the plaintiff’s allegations as
true but is not required to accept his legal conclusions. Id. at 678. A threadbare
recital of the elements of a cause of action, supported by conclusory statements,
does not suffice. Id.
We note that we do not usually consider issues not raised in the district court
and raised for the first time in an appeal. Access Now, Inc. v. Sw. Airlines Co., 385
F.3d 1324, 1331 (11th Cir. 2004). And where a legal claim or argument that has
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not been briefed on appeal is deemed abandoned, and its merits will not be
addressed. Id. at 1330. While we construe briefs filed by pro se litigants liberally,
a litigant’s decision to represent themselves pro se does not excuse noncompliance
with procedural requirements. To that end, issues not briefed on appeal by a pro se
litigant are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008). Further, issues must be raised plainly and prominently on appeal. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014).
Generally, issues raised in a conclusory manner, without citation to authorities and
the record, are deemed waived. See Fed. R. App. P. 28(a)(8); NLRB v. McClain of
Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998). Finally, we do not consider
arguments raised for the first time in a reply brief. Sappupo, 739 F.3d at 683.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a person
acting under color of state law committed an act that deprived him of some right
protected by the Constitution or laws of the United States. Qualified immunity
protects government officials from individual liability for discretionary actions
taken in the course of their duties. Alcocer v. Mills, 906 F.3d 944, 950–51 (11th
Cir. 2018). All except the plainly incompetent or an official who knowingly
violates federal law are protected from litigation under qualified immunity. Id. at
951. To show entitlement to qualified immunity, the official must first establish
that they acted within the scope of their discretionary authority. Id. Then the
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burden shifts to the plaintiff to show that qualified immunity is inappropriate. Id.
The plaintiff must show that the officer’s conduct violated a constitutionally
protected right and that the right was clearly established. Id. Each defendant is
entitled to an independent qualified-immunity analysis. Id.
The Fourteenth Amendment protects against deprivation by state action of a
constitutionally protected interest in “life, liberty, or property” without due process
of law. Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013). “The Due
Process Clause provides two different kinds of constitutional protections:
procedural due process and substantive due process.” Id. A violation of either can
form the basis for a suit under section 1983. Id.
To prove his section 1983 substantive due process claim, a plaintiff must
establish that he has been deprived of a federal constitutionally protected interest
and that the deprivation was the result of an abuse of governmental power.
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1577 (11th Cir. 1989).
Deprivation of a property interest is unconstitutional if it is undertaken for an
improper motive and by means that are pretextual, arbitrary and capricious, and
without any rational basis. Id. To succeed on a section 1983 claim challenging the
denial of procedural due process, a plaintiff must demonstrate: (1) the deprivation
of a constitutionally protected liberty or property interest, (2) state action, and (3) a
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constitutionally inadequate process. Grayden v. Rhodes, 345 F.3d 1225, 1232
(11th Cir. 2003).
As a general rule, state-created property rights enjoy no substantive due
process protection because they are not fundamental rights protected by the Due
Process Clause. Hillcrest Prop., LLP v. Pasco County, 915 F.3d 1292, 1297–98
(11th Cir. 2019); Kentner v. City of Sanibel, 750 F.3d 1274, 1279 (11th Cir. 2014).
We have recognized an exception to this general rule when rights are infringed by
a legislative, rather than an executive, act. Id. at 1279–80. Executive acts
characteristically apply to a limited number of people, often only one person, while
legislative acts apply to a larger portion, if not all, of society. Id. at 1280. There is
a strong presumption that a fine is not unconstitutionally excessive if it is within
the range of fines prescribed by the legislature. See United States v. Bajakajian,
524 U.S. 321, 336 (1998).
A violation of procedural due process does not become complete unless and
until the state refuses to provide adequate due process. Club Madonna, Inc. v. City
of Miami Beach, 924 F.3d 1370, 1378 (11th Cir. 2019). Generally, due process
requires notice and the opportunity to be heard. See Grayden, 345 F.3d at 1236.
An appeal of a final administrative order to the Florida State Circuit Court satisfies
due process because the circuit court has the power to remedy any procedural
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defects and cure due process violations. Club Madonna, 924 F.3d at 1379 (citing
McKinney v. Pate, 20 F.3d 1550, 1564 (11th Cir. 1994)).
Lindbloom’s specific argument is that Manatee County violated his due
process rights in two separate ways. First, it violated his substantive due process
rights by putting a lien on his property. Second, it violated his procedural due
process rights by providing him with an inadequate remedy. These arguments are
without merit. With respect to Lindbloom’s procedural due process claim, a
procedural due process claim does not accrue unless and until the state refuses
adequate due process. Club Madonna, id. at 1378. Lindbloom could have
appealed the final administrative order to the Florida State Circuit Court which has
the power to remedy any procedural defects and cure procedural due process
violations. Lindbloom failed to pursue that state court remedy, and therefore has
no procedural due process claim.
With respect to his substantive due process claim—even if we assume
arguendo that he is challenging a legislative act, not an executive act, with respect
to which under some circumstances “the substantive component of the Due Process
Clause . . . protects . . . from arbitrary and irrational governmental action,”
Kentner, 750 F.3d at 1278–80—Lindbloom has not pointed to irrational or
arbitrary governmental action.
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B. Constitutionality of the Local Government Code Enforcement Boards
Act
We review the constitutionality of a challenged statute de novo. Harris v.
Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009). A facial
challenge asserts that a law always operates unconstitutionally and an as-applied
challenge asserts that a law is unconstitutional on the facts of the particular case or
to a particular party. Id. Due process is violated where a law forbids or requires an
act in terms so vague that a person of common intelligence must necessarily guess
at its meaning and differ in its application. Id. at 1310. Separation of powers
principles recognize boundaries between the three branches of government and that
one branch must not encroach on the central prerogatives of another. See Miller v.
French, 530 U.S. 327, 341 (2000).
Florida’s Local Government Code Enforcement Boards Act was created to
promote the health and safety of state citizens by creating administrative boards to
impose administrative fines and other noncriminal penalties to provide an effective
and inexpensive method of enforcing county and municipal codes and ordinances
where a pending or repeated violation persists. Fla. Stat. § 162.02. A special
magistrate has the same status as an enforcement board. Id. § 162.03(2).
Enforcement is initiated by a code inspector who notifies the violator and gives
him a reasonable time to comply, and if the violation continues, the code inspector
notifies the special magistrate and requests a hearing. Id. § 162.06(2). At the
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hearing, the special magistrate must take testimony from the code inspector and the
alleged violator, and formal rules of evidence do not apply. Id. § 162.07(3). The
special magistrate must issue findings of fact, conclusions of law, and an order
affording the proper relief. Id. § 162.07(4).
Upon notification by the code inspector that a previous order has not been
complied with, the special magistrate can assess fines up to $250 per day that the
violation continues. Id. § 162.09(1), (2)(a). A certified copy of the order filed
with the public records constitutes a lien upon the property involved, and the
county attorney may foreclose on the lien unless it involves real property that is a
homestead under the Florida Constitution. Id. § 162.09(3). An appeal of the final
administrative order may be taken within 30 days to the state circuit court, which
must be limited to appellate review of the record created before the special
magistrate. Id. § 162.11.
Manatee County adopted this code enforcement system as it pertains to
property maintenance and structural standards through local ordinance. Manatee
County Ordinance 15-10. The ordinance provides that all property in the county
must be maintained in a sanitary condition and the “storage of trash, rubbish, and
garbage is prohibited on any property.” Id. § 2-9-105(c). Further, the ordinance
provides that all structures must be structurally sound and all roofs must be sound
and not have defects that admit rain. Id. § 2-9-106(b)(3). We have recognized the
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authority under Florida law for special magistrates to adjudicate code violations
pursuant to Fla Stat. §§ 162.01–.13. See Club Madonna, 924 F.3d at 1379.
Here, Lindbloom argues that (1) the Act is a bypass of due process and gives
unlimited power to the county with no appeal; (2) the code-enforcement scheme
transforms an administrative order into a court judgment in violation of separation
of powers principles; (3) that the County Ordinance targets old, poor citizens; and
(4) that the definition of “trash and debris” is vague. We note at the outset that
Lindbloom has inadequately developed his third argument, see Sapuppo, 739 F.3d
at 680–81, and that he has waived his fourth argument by not raising it before the
district court, see Access Now, 385 F.3d at 1331.
As to Lindbloom’s first two arguments, we conclude that they are without
merit. As a practical matter, the Act does allow for an appeal—that Lindbloom felt
that it was an inadequate avenue of appeal and opted against exercising does not
transform an otherwise-available appeal into an unavailable one.
With respect to his separation-of-powers argument, we find persuasive a
decision by Florida’s Fifth District Court of Appeal that rejected an identical
argument. The Fifth DCA reasoned that (1) the power given to the special
magistrate did not cross the line between “quasi-judicial” and “judicial”; (2) the
special magistrate cannot impose criminal penalties; (3) presentment of a defense
is permitted before enforcement of any lien; and (4) the statutory scheme provides
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for fundamental due process requirements, including notice and a hearing, creation
of a record, and an appeal. Michael D. Jones, P.A. v. Seminole Cty., 670 So. 2d 95,
96 (Fla. 5th DCA 1996). While obviously not binding, we agree with the Jones
court that the Act does not violate separation of powers principles.
And in any event, Lindbloom has not persuasively demonstrated how the
boundaries of the branches of government have been encroached by the Act. See
Miller, 530 U.S. at 341. His freewheeling argument that the Act “bestows upon
the county” the power to “detain, arrest, and incarcerate citizens[] for code
violations,” and therefore violates separation of powers principles finds no support
in the law. It is true that the Act allows code enforcement boards to “[i]ssue orders
having the force of law to command whatever steps are necessary to bring a
violation into code compliance,” Fla. Stat. § 162.08(5), and that its enforcement
methods include “the issuance of a citation, a summons, or a notice to appear in
county court or arrest for violation of municipal ordinances,” id. § 162.22, these
powers are narrow, see Op. Att’y Gen. Fla. 2009-37, and the punishments are
minimal. Accordingly, we affirm the district court’s order in this regard.
III. CONCLUSION
For the foregoing reasons, we conclude that the district court properly
dismissed Lindbloom’s complaint with prejudice for failure to state a claim. The
arguments he raises on appeal are without merit. The district court’s order is
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AFFIRMED.
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