Case: 12-12616

Date Filed: 04/29/2013

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-12616 ________________________ D.C. Docket No. 2:10-cv-00392-UA-DNF APOTHECARY DEVELOPMENT CORPORATION, d.b.a. Island Drug, LARRY G. HEINE, SUSAN K. HEINE, Plaintiffs - Appellees, versus CITY OF MARCO ISLAND FLORIDA, Defendant, THOM CARR, individually and as Chief of Police of Marco Island, Florida, Defendant - Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (April 29, 2013)

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Before DUBINA, Chief Judge, BARKETT and KLEINFELD, * Circuit Judges. PER CURIAM: Appellant Thom Carr appeals the district courts denial of his motion to dismiss Appellee Apothecary Development Corporation d/b/a Island Drug, Larry G. Heine, and Susan K. Heines (collectively Plaintiffs) 42 U.S.C. 1983 complaint. Carr argues that Plaintiffs failed to assert violations of clearly established constitutional rights and that he is entitled to qualified immunity. We agree with Carr that Plaintiffs have failed to properly allege a violation of their equal protection rights. However, we also agree with the district courts order that Plaintiffs have properly alleged violations of their substantive due process rights and that dismissal based on qualified immunity at this stage in the proceedings would be premature. Accordingly, we affirm in part and reverse in part the district courts order denying Carrs motion to dismiss. I. In their second amended 1983 complaint, Plaintiffs allege that from June 9, 2010, Carr, along with other members of the Marco Police department, began a systematic police operation designed to harass Island Drug and disturb its business operations. [R. 47 9.] The district court summarized Plaintiffs allegations in this regard, explaining that they:
Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit, sitting by designation. 2
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include posting police vehicles in conspicuous locations near the business premises so as to inhibit patronage; issuing trespass warnings, searching, and threatening to arrest Plaintiffs customers without reasonable suspicion, probable cause, or legal justification of any kind; harassing and accosting Plaintiffs customers inside and outside of the business premises; demanding Plaintiffs cease filling lawful prescriptions for non-local residents; and threatening to close down business operations. [R. 57 at 2.] The district court found that Plaintiffs complaint properly pleaded violations of both their substantive due process and equal protection rights. The district court also found that dismissal based on qualified immunity was not warranted. This appeal follows.

II. We review de novo the district courts denial of Carrs motion to dismiss based on qualified immunity. See Maggio v. Sipple, 211 F.3d 1346, 1350 (11th Cir. 2000). An appellate court reviewing the denial of the defendants claim of immunity need not consider the correctness of the plaintiffs version of the facts, nor even determine whether the plaintiffs allegations actually state a claim, rather, we must determine only whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions. Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816 (1985); see also Keating v. City of Miami, 598 F.3d 753, 760 (11th Cir. 2010) (noting that [t]his Courts
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appellate jurisdiction in matters challenging the denial of qualified immunity in a motion to dismiss extends only to the legal issues surrounding the district courts denial of [the defendants motion] to dismiss, i.e., issues concerning whether [the plaintiffs] complaint sufficiently alleged the violation of a clearly established right (internal quotation marks omitted)). III. Looking at the four corners of the complaint, and taking its allegations to be true, we agree with the district court that at this stage of the proceedings, Plaintiffs have provided sufficient facts to establish a violation of their substantive due process rights. The complaint alleges that as a result of Carrs actions, Plaintiffs have lost the freedom to pursue the livelihood of their choice. If true, such behavior is a violation of a clearly established constitutional right. See Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1045 (11th Cir. 1989) (noting that the Fourteenth Amendments due process clause guarantees citizens the right to be free in the enjoyment of all his facilities; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any livelihood or avocation). Accordingly, Plaintiffs substantive due process allegations survive Carrs motion to dismiss. IV.

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Plaintiffs equal protections claims, however, do not survive, because they have failed to provide sufficient facts to establish a violation of their equal protection rights. Plaintiffs assert that Carr violated its equal protection rights because eight other similarly situated pharmacies were not targeted by police. Although not addressed by the district court, Plaintiffs have asserted a class of one claim. [A] class of one claim involves a plaintiff who alleges that [it] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1202 (11th Cir. 2007) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074 (2000)). In cases that involve a qualified immunity defense, plaintiffs who fail to allege both elements of a class of one equal protection claim have not met their burden of showing that the defendants conduct violated a constitutional right. Id. Plaintiffs complaint baldly asserts that the alleged harassing behavior is being directed at and executed against Plaintiffs and their customers only, and not against similarly situated pharmacies, employees and customers in the Marco Island area. [R. 47 10q.] This is insufficient. Bare allegations that other [pharmacies], even all other [pharmacies], were treated differently do not state an equal protection claim; a complaint must attempt to show in some fashion that
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these other [pharmacies] were situated similarly to the plaintiff. GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1367-68 (11th Cir. 1998), abrogated on other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009). Accordingly, Plaintiffs equal protection claim must fail. V. We agree with the district court that dismissal of Plaintiffs complaint based on qualified immunity grounds at the motion-to-dismiss stage is not appropriate in this case. Qualified immunity offers complete protection for government officials sued in their individual capacities when acting within their discretionary authority if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Mann v. Taser Intl, Inc., 588 F.3d 1291, 1305 (11th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). As stated, Plaintiffs complaint has sufficiently pleaded facts that, taken as true, violate Plaintiffs clearly established substantive due process rights. As such, the district court was correct to deny qualified immunity at this stage of the proceedings. The district courts order is AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

John Ley Clerk of Court

For rules and forms visit www.ca11.uscourts.gov

April 29, 2013 MEMORANDUM TO COUNSEL OR PARTIES Appeal Number: 12-12616-DD Case Style: Apothecary Development Corpora, et al v. Thom Carr District Court Docket No: 2:10-cv-00392-UA-DNF On April 1, 2013, this Court began MANDATORY electronic filing. All counsel are required to file documents electronically in appeals pending on April 1, 2013, and in appeals docketed in this Court on or after that date, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b). The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3. Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.11. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 . Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for a writ of certiorari (whichever is later). Pursuant to Fed.R.App.P. 39, each party to bear own costs. The Bill of Costs form is available on the internet at www.ca11.uscourts.gov For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Tonya L. Richardson, DD at (404) 335-6135. Sincerely, JOHN LEY, Clerk of Court Reply to: Djuanna Clark Phone #: 404-335-6161 OPIN-1A Issuance of Opinion With Costs