Pillitieri v. City of Flagler Beach
Filing
22
ORDER granting 6 Defendant's Motion to Dismiss Plaintiff's Complaint. This case is dismissed. The Clerk of the Court is directed to close the file. Signed by Judge Marcia Morales Howard on 9/1/2017. (JW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
SALLY PILLITIERI,
Plaintiff,
v.
Case No. 3:16-cv-1121-J-34PDB
CITY OF FLAGLER BEACH,
Defendant.
_____________________________________/
ORDER
THIS CAUSE is before the Court on Defendant’s Motion to Dismiss Plaintiff’s
Complaint (Doc. No. 6; Motion), filed on September 14, 2016. On November 4, 2016,
Plaintiff Sally Pillitieri (Pillitieri) filed her Response and Memorandum of Law in Opposition
to Defendant’s Motion to Dismiss (Doc. No. 12; Response). Accordingly, this matter is ripe
for review.
I.
Background1
Pillitieri is an individual who owns real property in Flagler Beach, Florida (the Subject
Property). Complaint (Doc. No. 2; Complaint) ¶ 2. Defendant, the City of Flagler Beach
(the City), is a “municipality organized under the laws of the state of Florida.” Id. ¶ 3. In
the Complaint, Pillitieri alleges that, on or about April 22, 2014, the City issued a building
permit for the Subject Property. Id. ¶ 5. Soon thereafter, on April 28, 2014, Pillitieri
commenced work on the Subject Property. Id. ¶ 6. Then, on May 8, 2014, the City issued
1
In considering the Motion, the Court must accept all factual allegations in the complaint as
true, consider the allegations in the light most favorable to the plaintiff, and accept all reasonable inferences
that can be drawn from such allegations. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003); Jackson v.
Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). As such, the facts recited here are drawn from
the complaint, and may well differ from those that ultimately can be proved.
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a stop work order stating that the April 22, 2014 building permit had been “Issued in Error[.]”
See id. ¶ 7; see also Motion at 1. According to Pillitieri, “[t]he stop work order was entered
in retaliation against [Pillitieri] under the pretenses of construction design allegedly violating
a setback ordinance.” Complaint ¶ 8. Pillitieri further alleges that she spent the next
several months attempting to obtain a variance from the City to continue work on the
Subject Property as planned. Id. ¶ 9. However, her efforts were unsuccessful, and Pillitieri
ultimately paid an additional $115,787.85 in construction costs and expenses for “design
alterations and repair work” resulting from the City’s revocation of the permit. Id. ¶ 11.
Pillitieri represents that, at some point, the City offered to compensate her for the costs
incurred in reliance on “[the City’s] issuance of [the] initial building permit.” See id. ¶ 10.
On August 1, 2016, Pillitieri filed the Complaint in state court. See generally Notice
of Removal (Doc. No. 1; Notice of Removal), Exhibit 1: State Court Record. In the
Complaint, Pillitieri asserts a claim for “damages” (Count I), a claim under 42 U.S.C. § 1983
for violation of the Equal Protection Clause of the Fifth and Fourteenth Amendments to the
United States Constitution (Count II), and a claim under § 1983 for violation of procedural
due process, also pursuant to the Fifth and Fourteenth Amendments (Count III).2 See
generally Complaint at 2-4. On September 6, 2016, the City filed its Notice of Removal
2
In the Complaint, Pillitieri references claims arising under the Fifth Amendment; however, she does
not identify or rely upon any rights guaranteed by that amendment. Instead, Pillitieri alleges violations of her
rights to due process and equal protection. See generally Complaint. “The Fourteenth Amendment protects
those rights from violation by state governments, whereas the Fifth Amendment protects those rights, among
others, from infringement by the federal government.” Davis v. Self, 960 F. Supp. 2d 1276, 1303 (N.D. Ala.
2013) (citing Dusenbery v. United States, 534 U.S. 161, 167 (2002)). Here, the City is not a federal
government actor. Accordingly, to the extent Pillitieri bases her claims against the City on the Fifth
Amendment, such claims are due to be dismissed. See, e.g., Arrington v. Dickerson, 915 F. Supp. 1503,
1507 n. 3 (M.D. Ala. 1995) (noting that the plaintiff’s complaint failed to state any claim arising under the Fifth
Amendment “because the due process clause of the Fifth Amendment does not apply to state or local
governmental actors”).
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removing this case from the Circuit Court of the Seventh Judicial Circuit in and for Flagler
County, Florida, to this Court.
See Notice at 1; Complaint at 1.
Subsequently, on
September 14, 2016, the City filed the instant Motion. See Motion at 1.
II.
Standard of Review
In ruling on a motion to dismiss, the Court must accept the factual allegations set
forth in the complaint as true.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s
World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable
inferences should be drawn in favor of the plaintiff. See Omar ex. rel. Cannon v. Lindsey,
334 F.3d 1246, 1247 (11th Cir. 2003) (per curiam).
Nonetheless, the plaintiff must still
meet some minimal pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d
1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not
necessary,” the complaint should “‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff
must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The
“plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555 (internal quotations omitted); see also Jackson, 372
F.3d at 1262 (explaining that “conclusory allegations, unwarranted deductions of facts or
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legal conclusions masquerading as facts will not prevent dismissal”) (internal citation and
quotations omitted). Indeed, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions,” which simply “are not entitled
to [an] assumption of truth.” See Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a motion
to dismiss, the Court must determine whether the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 678
(quoting Twombly, 550 U.S. at 570).3
III.
Analysis
A.
Count I: Damages
In Count I of the Complaint, Pillitieri requests “damages and attorneys’ fees pursuant
to 42 U.S.C. [§] 1983 and 42 U.S.C. § 1988.” Complaint ¶ 13. The City construes this
claim as one asserting a “regulatory taking” or a claim of “inverse condemnation” and
argues that Pillitieri fails to state a claim as to either. See Response at 3-4. In the
Response, Pillitieri states that “she has not alleged a claim under either cause of action
and has instead chosen to seek damages pursuant to section(s) 1983 and 1988 for
deprivation of procedural due process and equal protection rights.”
3
Response at 5.
In the Motion, Pillitieri argues that because she pleaded the Complaint under state pleading
standards before it was removed to federal court, the federal pleading standard does not apply and the
Complaint’s sufficiency must instead be evaluated using standards of state law. See Response at 1-3 (citing
Maddox v. Ga. Dep’t of Human Servs. Div. of Family & Children Servs., No. 1:10-CV-2742-TWT, 2010 WL
4810286 (N.D. Ga. Nov. 19, 2010)) (finding that, in spite of removal, “state law governs the pleading
requirements with respect to the Complaint”). However, pursuant to Federal Rule of Civil Procedure (Rule(s))
81(c)(1), the Federal Rules “apply to a civil action after it is removed from state court.” Rule 81(c)(1). Indeed,
although Pillitieri cites a handful of cases which purportedly support her position, see Response at 1-2, the
majority of courts appear to agree that federal pleading standards apply to removed complaints, see, e.g.,
Jaggars v. City of Sheffield, Ala., No. 3:14-CV-158-TMP, 2014 WL 2123210, at *3 n. 4 (N.D. Ala. May 21,
2014) (memorandum opinion) (collecting cases). “Thus, contrary to [Pillitieri’s] assertion, the pleading
standard required to survive Rule 12(b)(6), as set forth in [Iqbal and Twombly], applies to [Pillitieri’s]
[C]omplaint upon removal.” See Cooper v. Marten Transp., Ltd., No. 1:10-CV-3044-AT, 2014 WL 11517830,
at *2 n. 6 (N.D. Ga. May 23, 2014) (collecting cases). Significantly, Pillitieri also cites the federal pleading
standard and argues her Complaint has met it. See Response at 3.
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Notably, in Count II, Pillitieri asserts a violation of her right to equal protection pursuant to
§ 1983, and in Count III she asserts a violation of her right to procedural due process
pursuant to § 1983. As such, her claims for damages or attorneys’ fees in Count I pursuant
to § 1983 are redundant and due to be dismissed. To the extent Pillitieri suggests that §
1988 provides an independent basis for additional relief, she is mistaken. Section 1988
authorizes a court to award attorneys’ fees to a successful § 1983 plaintiff. See 42 U.S.C.
§ 1988(b). However, the Eleventh Circuit has unequivocally held, “[s]ection 1988 does not
create an independent cause of action for deprivation of constitutional rights . . .”.
McLaughlin v. City of LaGrange, 662 F.2d 1385, 1388 n. 1 (11th Cir. 1981) (per curiam)
(citing Harding v. Am. Stock Exch., Inc., 527 F.2d 1366 (5th Cir. 1976)4); see also Estes v.
Tuscaloosa Cnty., Ala., 696 F.2d 898, 900 (11th Cir. 1983) (per curiam). Additionally,
requests for attorneys’ fees do not constitute a separate cause of action. See generally
Cook v. Campbell, 482 F. Supp. 2d 1341, 1353 n. 5 (M.D. Ala. 2007). Rather, Pillitieri’s
request for attorneys’ fees pursuant to § 1988 is appropriately included as part of Pillitieri’s
prayers for relief in Counts II and III, not as a separate claim. See id. As such, the Court
finds that – as a separate count – Count I is due to be dismissed as unnecessary and
redundant.
B.
Count II: Equal Protection
In Count II of the Complaint, Pillitieri alleges that, in revoking her building permit, the
City acted under color of state law and deprived her of constitutionally protected property
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
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rights.5 See Complaint ¶¶ 18-19. She further asserts that, in doing so, the City “treated
[her] different[ly] than similarly situated applicants whose building permits were issued and
maintained notwithstanding the fact that said permits were supported by far less evidence
of compliance.” Id. ¶ 21. In the Motion, the City notes that to establish that “she was
treated differently from similarly situated individuals, a plaintiff generally must identify
comparators.” Motion at 5 (quoting Decker v. Citrus Cnty., No. 5:15-CV-24-OC-30PRL,
2015 WL 6956545, at *4 (M.D. Fla. Nov. 10, 2015)) (citing Crystal Dunes Owners Ass’n
Inc. v. City of Destin, Fla., 476 Fed. Appx. 180, 184-85 (11th Cir. 2012)). Because Pillitieri
has not done so, the City argues that Count II should be dismissed. See id. at 6. In
response, Pillitieri contends that the Complaint contains the factual elements necessary to
sustain a cause of action by virtue of the inclusion of the allegation that the City treated her
differently as compared to similarly situated applicants. See Response at 6.
The Fourteenth Amendment to the United States Constitution provides, in pertinent
part: "No State shall make or enforce any law which shall . . . deny to any person within its
jurisdiction the equal protection of the laws." U.S. Const. amend XIV, § 1. This clause is
commonly referred to as the Equal Protection Clause and "is essentially a direction that all
persons similarly situated should be treated alike." Alamo Rent-A-Car, Inc. v. SarasotaManatee Airport Auth., 825 F.2d 367, 369 (11th Cir. 1987); see also Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (explaining that "the purpose of the equal protection
clause of the Fourteenth Amendment is to secure every person within the State's
5
Pillitieri also alleges that the City “maintained an official policy or custom that was the moving force”
behind its decision to revoke her permit. Complaint ¶ 20. Because municipalities can only be sued under §
1983 for their own unconstitutional or illegal policies, “a claim against a municipality under § 1983 must be
predicated upon an injury inflicted by governmental policy or custom constituting ‘official policy.’” See Hudson
v. City of Riviera Beach, 982 F. Supp. 2d 1318, 1327 (S.D. Fla. 2013) (citing Monell v. Dep’t of Social Servs.,
436 U.S. 658, 690 (1978)). Notably, however, Pillitieri does not identify what the “official policy or custom” is
in this case.
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jurisdiction against intentional and arbitrary discrimination, whether occasioned by express
terms of a statute or by its improper execution through duly constituted agents") (citation
and internal quotation marks omitted); Campbell v. Rainbow City, Ala., 434 F.3d 1306,
1313 (11th Cir. 2006). Thus, "[d]ifferent treatment of dissimilarly situated persons does not
violate the equal protection clause." E & T Realty v. Strickland, 830 F.2d 1107, 1109 (11th
Cir. 1987); Campbell, 434 F.3d at 1314.
To prevail on an equal protection claim under § 1983 – in particular a “selective
enforcement” claim – a plaintiff must show: “(1) that [she was] treated differently from other
similarly situated individuals, and (2) that [the d]efendant unequally applied a facially
neutral ordinance for the purpose of discriminating against [the p]laintiff[.]” Campbell, 434
F.3d at 1314 (citing Strickland v. Alderman, 74 F.3d 260, 264 (11th Cir. 1996)). As the
parties note, see Motion at 5; Response at 6, the Supreme Court has held that the Equal
Protection Clause is implicated in “class of one” claims “where the plaintiff alleges that she
has been intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Campbell, 434 F.3d at 1314 (quoting Vill. of
Willowbrook, 528 U.S. at 564). Consistent with this authority, the Eleventh Circuit has
determined that, with respect to the similarly situated requirement, “class of one plaintiffs
may [at the motion to dismiss stage] fairly be required to show that their professed
comparison is sufficiently apt.” See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205 (11th
Cir. 2007) (citations and internal quotations omitted) (collecting cases). As such, to state
a valid “class of one” claim, a plaintiff must “allege at least one similarly situated
comparator.” See, e.g., Eisenberg v. City of Miami Beach, 1 F. Supp. 3d 1327, 1342 (S.D.
Fla. 2014); see also id. at 1340 (collecting Eleventh Circuit precedent for the proposition
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that “[c]lass of one equal protection claims generally require plaintiffs to identify
comparators in the pleading . . .”).
In pleading the existence of a similarly situated comparator, a “class of one” plaintiff
must also demonstrate that any comparator is “very similar indeed[,]” such that a plaintiff
“might fail to state a claim by omitting key factual details in alleging that it is ‘similarly
situated’ to another.” See Griffin Indus., 496 F.3d at 1205 (citing GJR Invs., Inc. v. Cnty.
of Escambia, 132 F.3d 1359, 1367-68 (11th Cir. 1998)) (further noting that “[b]are
allegations that ‘other’ applicants, even ‘all other’ applicants, were treated differently do not
state an equal protection claim . . .”) (additional citations omitted). Indeed, to be similarly
situated in a “class of one” claim, a comparator must ultimately be “prima facie identical in
all relevant respects.” Campbell, 434 F.3d at 1314. Where a plaintiff has not demonstrated
that a comparator was similarly situated in all relevant respects, dismissal is appropriate.
See, e.g., Decker v. Citrus Cnty., 183 F. Supp. 3d 1203, 1205 (M.D. Fla. 2016).
Here, Pillitieri’s Complaint contains a single boilerplate reference to “similarly
situated applicants.” See Complaint ¶ 21. Specifically, Pillitieri alleges that she was treated
differently than these other applicants “notwithstanding the fact that [their] permits were
supported by far less evidence of compliance.” Id. She provides no specificity regarding
any of the alleged “similarly situated applicants.” Indeed, Pillitieri does not identify a single
comparator that was allegedly treated more favorably or even any characteristics of a
comparator or a comparator’s property. As a result, the City is not afforded fair notice of
the factual basis upon which Pillitieri’s claims rests – a result which “runs directly counter
to basic [federal] pleading requirements[.]” See Anderson v. Greene, No. CIV 05-0393-
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WS-M, 2005 WL 3058095, at *5 (S.D. Ala. Nov. 10, 2005).6 Moreover, Pillitieri has made
no effort to establish the similarities between herself and the other applicants, nor has she
alleged facts supporting a conclusion that she was treated differently than the other
applicants as is necessary to state a claim for relief that is plausible on its face. See
Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1275 (11th Cir. 2008) (citation omitted).
Because Pillitieri’s Complaint contains no more than “naked assertions devoid of further
factual enhancement” with respect to this claim, Iqbal, 556 U.S. 678, and does not show
that Pillitieri was similarly situated to any other applicant “in light of all the factors that would
be relevant to an objectively reasonable governmental decisionmaker,” Griffin Indus., 496
F.3d at 1207, the Court concludes that Pillitieri fails to state a claim for a “class of one”
equal protection violation under § 1983, and Count II is due to be dismissed.7
C.
Count III: Procedural Due Process
In Count III of the Complaint, Pillitieri alleges that, in revoking her building permit,
the City acted under color of state law and deprived her of constitutionally protected
property rights without due process of law. See Complaint ¶¶ 28-29. Specifically, Pillitieri
alleges that the City “did not afford [her] notice or [an] opportunity to be heard prior to
revo[king] a legally vested property interest.” See id. ¶ 30. The City argues that Count III
should be dismissed because Pillitieri does not have a property right in a building permit
“issued in error,” and that she otherwise failed to pursue available state remedies. See
Motion at 7, 9. In response, Pillitieri notes that “[d]ue process is flexible and calls for such
6
“Although an unpublished opinion is not binding . . ., it is persuasive authority.” United States v.
Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per curiam); see generally Fed. R. App. P. 32.1; 11th Cir. R.
36-2 (“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive
authority.”).
7
Having determined that dismissal is warranted on this basis, the Court need not consider whether
Count II is otherwise deficient.
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procedural protections as the particular situation demands[,]” Response at 7 (quoting
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)), and contends that the determination of
whether she had a vested property right in the permit is a factual question inappropriate for
consideration at the motion to dismiss stage of the proceedings, see Response at 7.
A § 1983 action alleging a procedural due process clause violation requires proof of
three elements: “(1) a deprivation of a constitutionally-protected liberty or property interest;
(2) state action; and (3) constitutionally inadequate process.” J.R. v. Hansen, 736 F.3d
959, 965 (11th Cir. 2013); see also Miccosukee Tribe of Indians of Fla. v. United States,
716 F.3d 535, 559 (11th Cir. 2013). The Court first turns to the question of whether Pillitieri
sufficiently alleged the existence of a protected property interest in the building permit.
“Property interests . . . are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law-rules or
understandings that secure certain benefits and that support claims of entitlement to those
benefits.” Doe v. Fla. Bar, 630 F.3d 1336, 1342 (11th Cir. 2011) (quoting Bd. of Regents
of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). As such, a property interest requires
more than an “abstract need” or “unilateral expectation[.]” See Bd. of Regents, 408 U.S.
at 577. Instead, it requires a legitimate claim of entitlement, which is created when “there
are such rules or mutually explicit understandings that support [the] claim of entitlement to
the benefit” which can be explored in a due process hearing. See Brown v. Ga. Dep’t of
Revenue, 881 F.2d 1018, 1025 (11th Cir. 1989) (quoting Perry v. Sindermann, 408 U.S.
593, 602 n. 7 (1972)). Put more simply, a person has a legitimate claim of entitlement in a
protected property interest only when an abstract property interest becomes a vested right.
See generally Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1211 n. 1 (11th Cir.
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1995) (equating “protected property interests” with “vested rights” in the context of a zoning
dispute).
With respect to building permits, the Eleventh Circuit recognizes that “Florida courts
have consistently held that a landowner has a property right in a building permit ‘where the
landowner possesses a building permit and where the circumstances that give rise to the
doctrine of equitable estoppel are present.’” Reserve, Ltd. v. Town of Longboat Key, 17
F.3d 1374, 1380 (11th Cir. 1994) (quoting City of Hollywood v. Hollywood Beach Hotel Co.,
283 So. 2d 867, 869 (Fla. Dist. Ct. App. 1973)); see also Hy Kom Dev. Co. v. Manatee
Cnty., 837 F. Supp. 1182, 1187 (M.D. Fla. 1993) (noting the “well established principle that
a vested right may be created in a building permit under circumstances which give rise to
the doctrine of equitable estoppel”). To invoke the doctrine of equitable estoppel in this
context, a property owner must show that he relied (1) in good faith (2) upon a government
act or omission and (3) thereafter made a substantial change in position or incurred
substantial expense such that it would be “highly inequitable and unjust” to destroy the
acquired property right. See Reserve, Ltd., 17 F.3d at 1380 (quoting City of Hollywood,
283 So. 2d at 869). Nevertheless, “a building permit issued in violation of the law or under
mistake of fact may be rescinded” even if construction has begun.
See Town of
Lauderdale-by-the-Sea v. Meretsky, 773 So. 2d 1245, 1247 (Fla. Dist. Ct. App. 2000)
(quoting Godson v. Town of Surfside, 8 So. 2d 497, 498 (Fla. 1942)). In other words, when
there is no authority to grant a building permit, the government entity that issued it cannot
be estopped from subsequently revoking it. See id. at 1249 (citing Ammons v. Okeechobee
Cnty., 710 So. 2d 641 (Fla. Dist. Ct. App. 1998)) (additional citations omitted).
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Here, Pillitieri alleges that she commenced work on the Subject Property in reliance
on the City’s issuance of the building permit, and that construction continued over a ten
day period before the City issued its stop work order, thereby resulting in $115,787.85 in
additional costs and expenses. See Complaint ¶¶ 6-7. As such, it is possible that these
circumstances could allow Pillitieri to invoke the doctrine of estoppel. The City contends
that, because Pillitieri alleges that the City issued her building permit in error, see id. ¶ 7,
the circumstances as pled could not give rise to estoppel, and consequently, the
establishment of a vested property right in the building permit.
See Motion at 7-9.
However, Pillitieri’s Complaint is not as unambiguous as the City suggests. She asserts
that the City issued a stop work order because the City said the permit was issued in error.
See Complaint ¶ 7. But she also alleges that “[t]he stop work order was entered in
retaliation against [her] under the pretenses of construction design allegedly violating a
setback ordinance.” Id. ¶ 8. As such, construing Pillitieri’s allegations in the light most
favorable to her – as the Court must – it is not clear that she is alleging that the permit was
in fact “issued in error.”
Assuming that Pillitieri has adequately alleged the deprivation of a constitutionally
protected property right, the Court must determine whether she sufficiently alleges
constitutionally inadequate process. This is so because, in the context of a procedural due
process claim, the constitutional violation is not the deprivation of a protected property
interest, but rather “the deprivation of such an interest without the due process of law.” See
Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297,
1316-17 (11th Cir. 2011) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis
in original)).
Consequently, where the state provides an adequate post-deprivation
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procedure, there is no procedural due process violation. See Cotton v. Jackson, 216 F.3d
1328, 1330-31 (11th Cir. 2000) (per curiam); see also Goodman v. City of Cape Coral, 581
Fed. Appx. 736, 739 (11th Cir. 2014) (per curiam) (noting that the Eleventh Circuit has
“repeatedly articulated the basic rule that a procedural due process violation has not
occurred when adequate state remedies are available”). “This rule ‘recognizes that the
state must have an opportunity to remedy the procedural failings of its subdivisions and
agencies in the appropriate fora . . . before being subjected to a claim alleging a procedural
due process violation.’” Flagship Lake Cnty. Dev. No. 5, LLC v. City of Mascotte, Fla., 559
Fed. Appx. 811, 814 (11th Cir. 2014) (per curiam) (quoting Cotton, 216 F.3d at 1331).8
Notably, “to be adequate, the state procedure need not provide all the relief available under
[§] 1983.” Cotton, 216 F.3d at 1331. Thus, if a plaintiff fails to allege that adequate state
remedies were unavailable, or if the plaintiff failed to avail herself of any available remedies,
then that plaintiff has failed to state a procedural due process claim. See id.
Under Florida law, decisions regarding building permits are judicial in nature and
are therefore entitled to certiorari review by state courts. See Park of Commerce Assocs.
v. City of Delray Beach, 636 So. 2d 12, 15 (Fla. 1994); see also Reserve, Ltd. v. Town of
Longboat Key, 933 F. Supp. 1040, 1044 (M.D. Fla. 1996). If the state court determines
that procedural due process was not accorded, then that court will grant relief by quashing
the local order. See Henniger v. Pinellas Cnty., 7 F. Supp. 2d 1334, 1337-38 (M.D. Fla.
1998) (citations omitted); see also Hudson, 982 F. Supp. 2d at 1334 (noting that “no state
court procedural-due-process violation can occur unless and until the state has had every
procedural opportunity to remedy an alleged deprivation of a protected interest[]” and that
8
Pillitieri’s allegation that the City did not afford her notice and an opportunity to be heard prior to the
revocation of her building permit, see Complaint ¶ 30, is therefore inapposite.
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a plaintiff’s “failure to plead that he attempted to obtain relief from Florida courts but that
they somehow violated his procedural due process” dooms the claim as pled).
Here, Pillitieri does not allege that the City failed to provide her with any judicial
remedies after the stop work order was issued. See generally Complaint at 4-5. Indeed,
Pillitieri could have sought review by the state courts, but she neither asserts that she did
or that the Florida courts denied her due process. Accordingly, Pillitieri has failed to plead
that the process available to her to remedy any purported property deprivation was
insufficient. Thus, even assuming Pillitieri had a vested property interest in the building
permit, she has not stated a procedural due process claim under § 1983. As a result, the
Court concludes that Count III is due to be dismissed as well.
IV.
Conclusion
In light of the foregoing, the City’s Motion is due to be granted in full.9 It is therefore
ORDERED:
1. Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc. No. 6) is
GRANTED, and the Complaint (Doc. No. 2) is DISMISSED.
2. The Clerk of the Court is directed to terminate all pending motions and
deadlines as moot and close the file.
DONE AND ORDERED in Jacksonville, Florida, on September 1, 2017.
9
Pillitieri, who is represented by counsel, has not sought leave to amend or otherwise made any
attempt to remedy the pleading deficiencies identified in the Motion. See Wagner v. Daewoo Heavy Indus.
Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).
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lc24
Copies to:
Counsel of Record
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