Daniel Wall-Desousa, et al v. Maureen Johnson, et al

Filing

Opinion issued by court as to Appellants Daniel Wall-Desousa and Scott Wall-Desousa. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10410
________________________
D.C. Docket No. 6:14-cv-01959-CEM-DAB

DANIEL WALL-DESOUSA,
SCOTT WALL-DESOUSA,
Plaintiffs - Appellants,
versus

FLORIDA DEPARTMENT OF HIGHWAY
SAFETY AND MOTOR VEHICLES, et al.,

Defendants,
MAUREEN JOHNSON,
Chief, Bureau of Records, Florida Department
of Highway Safety and Motor Vehicles,
Division of Motorist Services, in her individual capacity,
CLAYTON BOYD WALDEN,
Director of Florida Department of Highway Safety
and Motor Vehicles, Division of Motorist Services,
in his individual capacity,
DIANNE BOWMAN,
Supervisor of the Brevard County Tax Collector's
Office in Indian Harbour Beach, in her individual capacity,

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Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 2, 2017)
Before TJOFLAT, HULL, and O’MALLEY, * Circuit Judges.
HULL, Circuit Judge:
Plaintiffs Daniel Wall-DeSousa and Scott Wall-DeSousa (the “WallDeSousas”) appeal the district court’s dismissal of their second amended complaint
for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
The Wall-DeSousas brought suit under 42 U.S.C. § 1983, alleging First
Amendment retaliation claims against defendants Maureen Johnson, Clayton
Walden, and Dianne Bowman (the “defendants”). The defendants, as agents of the
State of Florida, defended on the basis of qualified immunity.
After review, and with the benefit of oral argument, we must affirm the
district court’s dismissal of the Wall-DeSousas’ second amended complaint.

*

Honorable Kathleen M. O’Malley, United States Circuit Judge for the Federal Circuit,
sitting by designation.
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I. BACKGROUND
A.

The Parties
The Wall-DeSousas describe themselves as a same-sex, married couple

living in Brevard County, Florida. Defendant Bowman is the supervisor of the
Indian Harbour Beach office of the Brevard County Tax Collector. Defendant
Johnson is the Chief of the Bureau of Records for the Florida Department of
Highway Safety and Motor Vehicles (“DHSMV”), Division of Motorist Services.
Defendant Walden is the Director of the DHSMV. According to the second
amended complaint, at all relevant times, the defendants acted under color of state
law.
B.

Factual Background
On December 6, 2013, the Wall-DeSousas legally married in New York

state. Before their marriage, the couple’s names were Daniel DeSousa and Scott
Wall. When Daniel and Scott married, they both changed their surnames to WallDeSousa. Their New York state marriage license reflected this change. The
marriage license did not indicate whether the Wall-DeSousas were a same-sex or
opposite-sex couple.
Later in December, the Wall-DeSousas returned to Florida. On December
27, 2013, the Wall-DeSousas visited a Social Security Administration office in
Melbourne, Florida and successfully obtained social security cards with the
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surname “Wall-DeSousa.” Thereafter, Daniel went to the Brevard County Tax
Collector’s Office in Palm Bay, Florida, to change the surname (at that point,
“DeSousa”) on his Florida driver’s license. The Palm Bay office issued Daniel a
Florida driver’s license with the surname “Wall-DeSousa.”
Scott also attempted to change the surname (at that point, “Wall”) on his
Florida driver’s license, but he went the Brevard County Tax Collector’s Office in
Indian Harbour Beach, Florida—where defendant Bowman is the supervisor— to
do so. At the Indian Harbour office, Scott presented defendant Bowman with his
new social security card and the Wall-DeSousas’ New York state marriage license.
Defendant Bowman allegedly refused to issue Scott a new driver’s license and
“tossed the marriage certificate back to [him],” indicating that it could not be used
to support a name change on a Florida driver’s license under Florida law. At the
time, Florida law, Fla. Stat. § 741.212 (2013), prohibited the recognition of out-ofstate same-sex marriages, providing that:
Marriages between persons of the same sex entered into in any
jurisdiction, whether within or outside the State of Florida, the United
States, or any other jurisdiction . . . are not recognized for any purpose
in this state.
The state, its agencies, and its political subdivisions may not
give effect to any public act, record, or judicial proceeding of any
state, territory, possession, or tribe of the United States or of any other
jurisdiction, either domestic or foreign, or any other place or location
respecting either a marriage or relationship not recognized [by the
State of Florida] or a claim arising from such a marriage or
relationship.
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Fla. Stat. § 741.212(1), (2) (2013). Accordingly, at the time, defendant
Bowman followed the law in not recognizing Scott’s out-of-state same-sex
marriage.
After denying Scott’s request to change his driver’s license, defendant
Bowman allegedly called the Palm Bay office in order to have Daniel’s driver’s
license canceled. The Palm Bay office did not cancel Daniel’s driver’s license.
On August 21, 2014, the United States District Court for the Northern
District of Florida ruled that the Florida law in § 741.212 was unconstitutional and
issued a preliminary injunction enjoining its enforcement. Brenner v. Scott, 999 F.
Supp. 2d 1278, 1290-92 (N.D. Fla. 2014). The district court stayed the issuance of
its preliminary injunction until ninety-one days after the Supreme Court’s decision
on then-pending stay applications in three separate same-sex marriage cases. Id. at
1292. On October 6, 2014, the Supreme Court denied those stay applications. See
Schaefer v. Bostic, ___ U.S. ___, 135 S. Ct. 308 (2014); Smith v. Bishop, ___ U.S.
___, 135 S. Ct. 271 (2014); Herbert v. Kitchen, ____ U.S. ____, 135 S. Ct. 265
(2014). This meant that the district court’s stay of its preliminary injunction would
be lifted on January 6, 2015 (ninety-one days after October 6, 2014) and thus that,
beginning on January 6, 2015, enforcement of § 741.212 would be enjoined.
However, up until January 6, 2015, § 741.212 remained legally in effect.

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In early October 2014, an assistant to the Brevard County Tax Collector took
the Wall-DeSousas’ marriage certificate to the DHSMV in Tallahassee, Florida for
guidance on the surname issue. After doing so, the assistant informed Scott that,
because the marriage certificate was not marked “same-sex,” Scott could use the
document to obtain a driver’s license with the “Wall-DeSousa” surname in a
county other than Brevard. The assistant, however, informed Scott that she could
not personally issue him a driver’s license because she now knew that his marriage
was between same-sex partners. The Brevard County assistant advised Scott to try
to obtain his driver’s license in another county because “the tax collector in another
county would not be aware nor would they be able to ask.”
On October 15, 2014, Scott traveled to a new county—Orange County,
Florida—to obtain a new driver’s license. A clerk with the Orange County Tax
Collector’s Office informed Scott that the DHSMV had a “don’t ask, don’t tell”
policy in place. Scott successfully obtained a driver’s license reflecting his new
surname by presenting his marriage certificate, his social security number, and a
car insurance bill.
On October 30, 2014, the Wall-DeSousas spoke to a local news anchor on a
televised broadcast about their difficulties obtaining driver’s licenses, the DHSMV
policy, and how other people could deal with the same issue. According to the
second amended complaint, defendant Bowman saw the news story and then
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contacted the DHSMV to request that it cancel the Wall-DeSousas’ driver’s
licenses.
On November 5, 2014, the DHSMV sent each of the Wall-DeSousas an
individually addressed copy of a single letter indicating that the Wall-DeSousas’
driver’s licenses would be canceled indefinitely as of November 25, 2014. The
DHSMV letter stated that, “[b]ecause same sex marriage certificates are not
recognized as valid in Florida under 741.212, F.S., . . . we are unable to change
your last name.” Defendants Johnson and Walden both signed the letter. On
November 7, 2014, the Wall-DeSousas received the letter.
On November 11, 2014, the Wall-DeSousas reached back out to the same
local news station for a follow-up news story. A follow-up news story aired later
that day.
On November 13, 2014, Scott asked the DHSMV to reconsider its decision
to cancel the Wall-DeSousas’ driver’s licenses. The DHSMV representative, in a
“scripted manner,” told Scott to apply for an administrative hearing. The DHSMV
representative indicated that the DHSMV and the Tax Collector’s offices were
“following the letter of the law but not the spirit of the law.”
On November 24, 2014, the day before the DHSMV planned to cancel the
Wall-DeSousas’ driver’s licenses, Scott returned to the Indian Harbour Beach
office to change his driver’s license back to his pre-marriage surname. At the
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office, defendant Bowman told Scott that he could only receive a temporary
courtesy license, valid for ninety days, which would be canceled if he did not
present a passport reflecting his new surname within that time period. Separately,
Daniel returned his own driver’s license by cutting it in half and sending it to the
DHSMV, in accordance with the DHSMV’s license-return policy.
On January 5, 2015, the DHSMV issued a “technical advisory,” which
directed all DHSMV offices to, “[e]ffective January 6, 2015,” recognize “all
marriage certificates as sufficient proof to complete a name change on a driver
license or identification card.” January 6, 2015 marked the first day in which the
Florida district court’s stay of its preliminary injunction was lifted and the
preliminary injunction, barring the enforcement of § 741.212, took effect.
On January 13, 2015, the Wall-DeSousas both successfully obtained licenses
with the “Wall-DeSousa” surname at the Palm Bay office in Brevard County.
C.

Procedural History
On November 25, 2014, the Wall-DeSousas filed a complaint against the

governor of Florida, the then-director of the DHSMV, and defendant Bowman,
alleging a variety of constitutional claims. On January 23, 2015, the WallDeSousas filed a first amended complaint, naming Bowman, Johnson, Walden, and
four Jane Does as defendants and asserting a single First Amendment retaliation
claim under 42 U.S.C. § 1983. The defendants responded by filing motions to
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dismiss. On July 16, 2015, the district court dismissed the Wall-DeSousas’ first
amended complaint without prejudice.
On July 31, 2015, the Wall-DeSousas filed a second amended complaint—
the operative complaint for purposes of this appeal. The Wall-DeSousas brought a
First Amendment retaliation claim under § 1983 against defendants Johnson and
Walden (“Count 1”) and a First Amendment retaliation claim under
§ 1983 against defendant Bowman (“Count 2”). The second amended complaint
alleged that defendants Johnson and Walden, in sending the November 5, 2014
letter from the DHSMV, retaliated against the Wall-DeSousas by seeking to cancel
their driver’s licenses in response to the Wall-DeSousas’ exercise of constitutional
activity—speaking out on television on October 30, 2014. The second amended
complaint also alleged that defendant Bowman retaliated against the WallDeSousas by “advis[ing]” the DHSMV to cancel their driver’s licenses in response
to the same activity. The defendants filed motions to dismiss, asserting qualified
immunity as a defense.
On January 19, 2016, the district court granted the defendants’ motions to
dismiss, holding that the defendants were entitled to qualified immunity. The
district court, in effect, determined that the facts alleged in the Wall-DeSousas’
second amended complaint did not specify conduct causing a constitutional
violation. Rather, the defendants’ conduct was caused by, and constituted legal
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enforcement of, § 741.212, which was still valid at the time. The Wall-DeSousas
timely appealed.
II. APPLICABLE LAW
A.

Standard of Review
“We review de novo the district court’s grant of a Rule 12(b)(6) motion to

dismiss for failure to state a claim, accepting the complaint’s allegations as true
and construing them in the light most favorable to the plaintiff.” Cinotto v. Delta
Air Lines Inc., 674 F.3d 1285, 1291 (11th Cir. 2012). “A public official’s
entitlement to qualified immunity presents a purely legal question, subject to de
novo review.” Harris v. Bd. of Educ., 105 F.3d 591, 595 (11th Cir. 1997) (per
curiam).
B.

Pleading Requirements
A complaint must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)). “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that

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a defendant has acted unlawfully.” Id. at 678, 129 S. Ct. at 1949 (quoting
Twombly, 550 U.S. at 556, 127 S. Ct. at 1965).
C.

Qualified Immunity
A complaint may “be dismissed under Rule 12(b)(6) when its own

allegations indicate the existence of an affirmative defense, so long as the defense
clearly appears on the face of the complaint.” Quiller v. Barclays
American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984), aff’d on reh’g en
banc, 764 F.2d 1400 (1985) (en banc).
The defense of qualified immunity “protects government officials
performing discretionary functions . . . from liability if their conduct violates no
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996). “Once
an officer raises the defense of qualified immunity, the plaintiff bears the burden to
show that the officer is not entitled to it.” Keating v. City of Miami, 598 F.3d 753,
762 (11th Cir. 2010). To overcome qualified immunity at the motion-to-dismiss
stage, the plaintiff must plead sufficient facts to allege that: (1) the defendant
violated a constitutional right; and (2) the right was clearly established at the time
of the alleged violation. Morris v. Town of Lexington, 748 F.3d 1316, 1322 (11th
Cir. 2014); see also Wilson v. Layne, 526 U.S. 603, 609, 119 S. Ct. 1692, 1697
(1999). A court may begin the qualified immunity analysis with either prong, at its
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discretion. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818 (2009).
The analysis is limited to “the facts and the law present at the time that public
officials make their decisions and does not take into account later facts or changes
in the law.” Jackson v. Humphrey, 776 F.3d 1232, 1242 (11th Cir. 2015).
Qualified immunity provides “immunity from suit rather than a mere
defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815
(1985); see also id. (“Unless the plaintiff’s allegations state a claim of violation of
clearly established law, a defendant pleading qualified immunity is entitled to
dismissal before the commencement of discovery.”).
III.

DISCUSSION

Below, we address whether the second amended complaint sufficiently
alleges a violation of a clearly established constitutional right.
The Wall-DeSousas allege that the defendants retaliated against them for
exercising their First Amendment rights.1 “To establish a First Amendment
retaliation claim, a plaintiff must show that (1) her speech was constitutionally
protected; (2) she suffered adverse conduct that would likely deter a person of
ordinary firmness from engaging in such speech; and (3) there was a causal

1

The Wall-DeSousas do “not reassert a challenge to Florida’s ban on same-sex marriage.
Rather their argument is that Florida’s then-valid same-sex marriage ban was applied in a
retaliatory manner to punish the Wall-DeSousas for engaging in conduct protected by the First
Amendment.”
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relationship between the adverse conduct and the protected speech.” Castle v.
Appalachian Tech. Coll., 631 F.3d 1194, 1197 (11th Cir. 2011).
A.

Protected Speech
The Wall-DeSousas must first adequately allege that the speech at issue—

the October 30, 2014 televised interview—is entitled to First Amendment
protection.
Speech that concerns public issues occupies the “highest rung of the
hierarchy of First Amendment values and is entitled to special protection.” Snyder
v. Phelps, 562 U.S. 443, 452, 131 S. Ct. 1207, 1215 (2011) (quoting Connick v.
Myers, 461 U.S. 138, 145, 103 S. Ct. 1684, 1689 (1983)) (internal quotation marks
omitted). “Speech deals with matters of public concern when it can be ‘fairly
considered as relating to any matter of political, social, or other concern to the
community.’” Id. at 453, 131 S. Ct. at 1216 (quoting Connick, 461 U.S. at 146,
103 S. Ct. at 1690).
Here, the the Wall-DeSousas’ October 30, 2014 televised interview
discussed the Wall-DeSousas’ explanation of the difficulties that they faced—and
that other same-sex couples might face—in using same-sex documentation for the
purposes of obtaining a new driver’s license in Florida. The broad dissemination
of the televised interview, as well as the interview’s attempt to inform others about
the impact of local law, clearly touch upon matters of public concern.
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Accordingly, the Wall-DeSousas’ October 30, 2014 televised interview enjoys
First Amendment protection.
B.

Adverse Conduct
The Wall-DeSousas also must sufficiently allege that the retaliatory conduct

that they suffered would “likely deter a person of ordinary firmness from
engaging” in similar future speech. Castle, 631 F.3d at 1197; see also Bennett v.
Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (adopting this standard for the
Eleventh Circuit). This is an objective standard which does not focus on whether a
plaintiff was actually deterred, though a plaintiff’s actions may serve as an
example of what a reasonable person would have done. See Bennett, 423 F.3d at
1255. Even though a retaliatory act’s “effect on freedom of speech may be small,
. . . it need not be great in order to be actionable.” Id. at 1254 (quoting Bart v.
Telford, 677 F.2d 622, 625 (7th Cir. 1982)).
The second amended complaint alleges the following adverse conduct: Scott
was “forced to accept a driver’s license in his maiden name,” and Daniel had to go
“without a driver’s license for 49 days.” Accepting these allegations as true, the
Wall-DeSousas allege harms that would reasonably dissuade an ordinary person
from speaking out. It is clear that the loss of a driver’s license would make a
number of basic daily functions of modern life appreciably more difficult for the
ordinary person. Cf. Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 1589
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(1971) (“Once licenses are issued . . . their continued possession may become
essential in the pursuit of a livelihood. Suspension of issued licenses thus involves
state action that adjudicates important interests of the licensees.”). We also
recognize the harm in being denied the opportunity to choose one’s preferred legal
name where such a denial creates inconsistencies in a person’s legal name across
differing forms of government identification, as well as the harm in being denied
the opportunity to obtain a driver’s license in that preferred legal name. In this
case, it is sufficient to say that the Wall-DeSousas’ alleged harms satisfy their
burden at this Rule 12(b)(6) stage of litigation.
C.

Causation
The Wall-DeSousas must also sufficiently allege facts to support a finding of

a causal connection between their protected speech and the adverse conduct that
they suffered. “[T]o establish a causal connection, the plaintiff must show that the
defendant was subjectively motivated to take the adverse action because of the
protected speech.” Castle, 631 F.3d at 1197. This in turn requires that the
defendants had actual knowledge of the plaintiffs’ protected speech, which “can be
established by circumstantial evidence.” Brungart v. BellSouth Telecomms., Inc.,
231 F.3d 791, 799 (11th Cir. 2000), cert. denied, 121 S. Ct. 1998 (2001).2

2

At this Rule 12(b)(6) stage, the Wall-DeSousas allege that circumstantial evidence
shows that defendants Johnson and Walden had actual knowledge of the Wall-DeSousas’
October 30, 2014 televised interview; namely, defendants Johnson and Walden both signed the
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D.

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Clearly Established Law
Ultimately, we need not decide if the Wall-DeSousas have alleged sufficient

facts regarding a causal connection as required to state a constitutional violation.
This is because, to survive dismissal in this case, the Wall-DeSousas must
additionally allege sufficient facts to overcome the second prong of qualified
immunity, i.e., clearly established federal law.
In this regard, prior Supreme Court and circuit precedent is instructive. In
Mt. Healthy v. Doyle, the Supreme Court observed that a state official may act
lawfully even where in part motivated by some unlawful motive so long as, in the
absence of the unlawful motive, the official would have taken the same action
pursuant to an existing lawful motive. 429 U.S. 274, 287 97 S. Ct. 568, 576
(1979).
In Foy v. Holston, applying Mt. Healthy in the context of qualified
immunity, this Court held that the existence of an unlawful motive will not defeat
qualified immunity so long as the state official would have taken the challenged
action pursuant to a lawful reason. 94 F.3d 1528, 1532 (11th Cir. 1996). In Foy v.
Holston, this Court explained:

November 5, 2014 letter mere days after the Wall-DeSousas’ October 30, 2014 televised
interview. As to defendant Bowman, the Wall-DeSousas allege, upon information and belief,
that defendant Bowman saw the October 30, 2014 televised interview.
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[W]e accept that Plaintiffs have presented a triable issue of fact on
whether Defendants were motivated by a hostility toward [Plaintiffs’]
religion . . . . In addition, we, for now, resolve this disputed issue by
making an assumption in Plaintiffs’ favor. So, the question becomes
whether this assumption—that is, Defendants’ acts were motivated
some by prejudice against Plaintiffs’ religion—is a bar to immunity.
Id. at 1533. This Court further emphasized the “well established” principle “that
state officials can be motivated, in part, by a dislike or hostility toward a certain
protected class to which a citizen belongs and still act lawfully.” Id. at 1534 (citing
Vill. of Arlington Hts. v. Metro. Housing Dev. Corp., 429 U.S. 252, 269-71, 97 S.
Ct. 555, 566 n.21 (1977)). This Court added that, “[f]or example, state officials act
lawfully despite having discriminatory intent, where the record shows they would
have acted as they, in fact, did act even if they had lacked discriminatory intent.”
Id. (citing Mt. Healthy, 429 U.S. at 286-87, 97 S. Ct. at 576). In such
circumstances, it is not clearly established that the state official’s action was in
violation of the plaintiff’s constitutional rights. Id. at 1534-35.
Here, three things in the record, taken together, undisputedly establish that
the defendants were motivated, at least in part, by lawful considerations. First, by
its own language, the second amended complaint alleges that defendants Johnson
and Walden retaliated against the Wall-DeSousas by signing and sending the
November 5, 2014 driver’s license cancellation letter. From the Wall-DeSousas’
own complaint, we know that the defendants signed and sent the Wall-DeSousas
this November 5, 2014 letter stating why their driver’s licenses were being
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canceled. Second, the text of the letter is in the record, 3 and that text expressly and
exclusively bases the defendants’ cancellation of the Wall-DeSousas’ drivers
licenses on the enforcement of the § 741.212 law.4 The text of the letter even cites
the Florida statute. Third, the judicial record establishes that § 741.212 was still
valid at the time the defendants’ letter was sent. Thus, the record shows that lawful
considerations at least partially caused the cancellation of the Wall-DeSousas’
driver’s licenses.
Accordingly, during the relevant periods in this case, Florida law precluded
same-sex marriage, the November 5, 2014 cancellation letter cited that law, and
each of the defendants “in fact, did possess a substantial lawful motive for acting
as [they] did act.” Foy, 94 F.3d at 1534. When an adequate lawful motive is
present, even an assumed fact that an unlawful, retaliatory motive also exists does
not preclude qualified immunity.
Here, the allegations of the second amended complaint, taken with the text
of the November 5, 2014 letter canceling the Wall-DeSousas’ driver’s licenses

3

Defendants Johnson and Walden attached copies of the November 5, 2014 letter to their
motion to dismiss. Although the text of this letter is not included within the second amended
complaint, this Court is permitted to consider the letter in its review. See Fin. Sec. Assurance,
Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007) (explaining that this Court may look
beyond the face of a complaint on a motion to dismiss “in cases in which a plaintiff refers to a
document in its complaint, the document is central to its claim, its contents are not in dispute,
and the defendant attaches the document to its motion to dismiss”).
4

Defendant Bowman had no authority to cancel the Wall-DeSousas’ driver’s licenses or
any supervisory authority.
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based on § 741.212, show substantial lawful intent without ruling out some
unlawful intent, too. It is undisputed that, at the time of the November 5, 2014
letter, the enforcement of § 741.212 was not enjoined. Florida law did not
recognize out-of-state same-sex marriages and driver’s licenses based on the WallDeSousas’ out-of-state marriage license. Once enforcement of § 741.212 was
enjoined on January 6, 2015, the requested driver’s licenses were issued shortly
thereafter.5
Given our precedent, the circumstances alleged, and the state of the Florida
law at the time, we cannot say that the district court erred in dismissing this case
against the defendants based on qualified immunity. See Mt. Healthy, 429 U.S. at
287, 97 S. Ct. at 576; Jackson, 776 F.3d at 1240; Foy, 94 F.3d at 1533-36. This is
not a case where no legitimate reason in fact motivated the defendants’ conduct.

5

The dissent suggests that a partial lawful motivation can never be decided on a motion to
dismiss. But this ignores the allegations in the Wall-DeSousas’ second amended complaint, the
text of the defendants’ letter which is properly before the Court (see n.3, infra), and the fact that
§ 741.212 remained the law at the time the letter was sent. Although qualified immunity
defenses are sometimes resolved at the summary judgment stage, district courts may grant
motions to dismiss on the basis of qualified immunity if the undisputed facts in the plaintiffs’
own complaint show that the defendants acted lawfully. See Behrens v. Pelletier, 516 U.S. 299,
309, 116 S. Ct. 834, 840 (1996) (“At [the motion to dismiss] stage, it is the defendant’s conduct
as alleged in the complaint that is scrutinized for ‘objective legal reasonableness.’”).
The dissent suggests that the Wall-DeSousas need discovery. But the text of the letter is
evidence of at least one of the defendants’ motivations. See Mitchell, 472 U.S. at 526, 105 S. Ct.
at 2815 (1985) (“Unless the plaintiff’s allegations state a claim of violation of clearly established
law, a defendant pleading qualified immunity is entitled to dismissal before the commencement
of discovery.”). And even if the Wall-DeSousas could show an improper motive too in
discovery, here we have assumed that fact in the Wall-DeSousas’ favor.
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Importantly too, at the time of the conduct here, it was not clearly established
federal law that the defendants could not act as they did. Jackson, 776 F.3d at
1240-41; Foy, 94 F.3d at 1535. 6
IV. CONCLUSION
For all of these reasons, we affirm the district court’s dismissal of the WallDeSousas’ second amended complaint.
AFFIRMED.

6

Because the Wall-DeSousas fail to allege that the constitutional right at issue was clearly
established, we do not decide whether the defendants violated that right for purposes of the first
prong of the qualified immunity analysis. See Pearson, 555 U.S. at 236, 129 S. Ct. at 818;
Morris 748 F.3d at 1322.
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O’MALLEY, Circuit Judge, dissenting:
Because the district court’s order conflates the mere existence of a lawful
basis with whether a defendant seeking qualified immunity was actually motivated
by that lawful basis, and today’s opinion affirms that error, I must respectfully
dissent.
It is well-established under Eleventh Circuit law that, to find a lack of
causation for purposes of qualified immunity, “it is not sufficient for [a defendant]
to establish that there exists a lawful basis.” Stanley v. City of Dalton, 219 F.3d
1280, 1296 (11th Cir. 2000). “Rather, in order for the Foy analysis to apply, [the
defendant] himself must have been actually motivated, at least in part, by that
lawful basis.” Id. (emphasis added).
This question of actual motivation is a “fact and circumstances”-specific
inquiry, not appropriately decided at the motion to dismiss stage. Foy v. Holston,
94 F.3d 1528, 1534–35 (11th Cir. 1996) (“Where the facts assumed for summary
judgment purposes . . . show mixed motives . . . the defendant is entitled to
immunity.”) (emphasis added); see also Stanley, 219 F.3d at 1296 (noting that “the
record” must “undisputably establish[] that the defendant in fact was motivated, at
least in part, by lawful considerations” for Foy to apply); see generally Bogle v.
McClure, 332 F.3d 1347, 1356 (11th Cir. 2003) (finding a lack of “record
evidence” to “indicate that [defendants] were in fact motivated, at least in part, by
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objectively valid reasons”); Jackson v. Humphrey, 774 F.3d at 1240 (11th Cir.
2015) (relying on “the record presented at summary judgment” to find that
defendants were motivated, “at least in part,” by “a lawful reason”).
The cases on which the majority relies to affirm the district court’s reasoning
only serve to highlight this point; each case involved a factual record developed
well past the point of discovery. See Foy, 94 F.3d at 1531 (decided on appeal from
a denial of summary judgment); Jackson, 776 F.3d at 1234 (decided on appeal
from a grant of summary judgment); Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 276 (1977) (decided on appeal from a bench trial). Despite
this clear line of precedent, today’s opinion amends Foy, broadening its holding to
encompass motions to dismiss for the first time.
Absent a fully developed record, the majority can point only to the
November 5th letter, and its references to the § 741.212 law, to find both existence
and actual motivation vis-à-vis lawful motive. If this case were before us from a
grant of summary judgment, and the Wall-DeSousas had failed to provide any
evidence rebutting the letter, that finding would be reasonable. But where the
Wall-DeSousas have not been afforded the opportunity for discovery, it is
premature to fault them for failing to provide evidence showing solely illicit intent
on the part of the defendants.

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Reading Foy broadly would effectively immunize all defendants who luck
into lawful post-hoc explanations for otherwise illegally-motivated behavior. Even
where flagrant smoking guns exist, plaintiffs will never be able to discover them.
And where, by sheer providence, the plaintiffs already have a smoking gun in
hand, how can they use it to rebut a motion to dismiss if its contents are disputed?
See Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir.
2007).
I acknowledge wholeheartedly that the Wall-DeSousas’ complaint is not a
model of clarity, replacing concrete and particularized allegations with conclusory
generalities. Had the district court rejected their complaint as failing outright to
provide “sufficient factual matter” to satisfy the straightforward requirements of
Iqbal and Twombly, I would have few qualms in affirming. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). By relying instead on Foy, the district court’s analysis begins a dangerous
practice, which today’s opinion ratifies. I respectfully dissent.

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