Filed: Apr. 21, 2009
Latest Update: Mar. 02, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 08-14846 ELEVENTH CIRCUIT APRIL 21, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 08-00364-CV-FTM-29-SPC JENNIFER FRANKLIN PRESCOTT, JORG BUSSE, Plaintiffs-Appellants- Cross-Appellees, versus STATE OF FLORIDA, BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF RECREATION AND PARKS, HAROLD
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 08-14846 ELEVENTH CIRCUIT APRIL 21, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 08-00364-CV-FTM-29-SPC JENNIFER FRANKLIN PRESCOTT, JORG BUSSE, Plaintiffs-Appellants- Cross-Appellees, versus STATE OF FLORIDA, BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF RECREATION AND PARKS, HAROLD ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14846 ELEVENTH CIRCUIT
APRIL 21, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-00364-CV-FTM-29-SPC
JENNIFER FRANKLIN PRESCOTT,
JORG BUSSE,
Plaintiffs-Appellants-
Cross-Appellees,
versus
STATE OF FLORIDA,
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT
TRUST FUND,
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
DIVISION OF RECREATION AND PARKS,
HAROLD GEORGE VIELHAUER, et al.,
Defendants-Appellees,
KENNETH M. WILKINSON,
Defendant-Appellee-
Cross-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(April 21, 2009)
Before BLACK, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Jennifer Franklin Prescott and Jorg Busse (“the Appellants”), proceeding pro
se, appeal the district court’s: (1) dismissal without prejudice of their pro se civil
rights complaint for lack of subject matter jurisdiction and failure to state a claim
and (2) denial of their motion for the district court judge to recuse himself.
Appellee Ken Wilkinson cross-appeals the district court’s denial of his motion for
sanctions against the Appellants. After review, we affirm.
I. BACKGROUND
A. Current Action
The Appellants are owners of Lot 15A in the Cayo Costa subdivision in Lee
County, Florida. On May 5, 2008, the Appellants filed the present pro se
complaint against numerous state and county officials1 alleging that they had
1
The complaint named the following defendants (herein collectively “the Appellees”): (1)
the State of Florida Board of Trustees of the Internal Improvement Trust Fund; (2) the Florida
Department of Environmental Protection, Division of Recreation and Parks; (3) Lee County,
Florida; (4) the Board of Lee County Commissioners; (5) Jack N. Peterson, Lee County
2
violated the Appellants’ constitutional rights with respect to their Cayo Costa
property. Most of the allegations in the complaint concern the 1969 Lee County
Resolution 569/875, which claimed the undesignated areas on the east and west
side of the Cayo Costa subdivision plat and all accretions thereto as public land to
be used for public purposes. The Appellants’ Lot 15A is on the west side of the
Cayo Costa subdivision on the Gulf of Mexico and is adjacent to land that was
claimed through Resolution 569/875 to create the Cayo Costa State Park.
The Appellants’ complaint alleged that the Appellees: (1) passed an invalid
resolution that resulted in the unconstitutional taking of their land without just
compensation, the operation of a state park on their land, and the destruction of
their land through the failure to prevent fires on their property during a drought, all
in violation of the Takings and Due Process Clauses; (2) enacted Lee County
Resolution 569/875 without notice and a hearing in violation of the Due Process
Clause; and (3) treated certain individuals differently in violation of the Equal
Protection Clause. The Appellants alleged numerous bases for federal
jurisdiction.2 The complaint also alleged several state law violations, including
Attorneys Jack Peterson, Donna Marie Collins, and David Owen; (6) Lee County property
appraisers Kenneth M. Wilkinson and Sherri L. Johnson; and (7) Cayo Costa State Park
employees Reginald Norman, Harold Vielhauerin, Linda Funchess, Reagan Russell, and Tom
Beason.
2
The Appellants alleged that there was federal jurisdiction for their complaint under:
(1) 42 U.S.C. § 1983; (2) 28 U.S.C. §§ 1331 and 1343; (3) Articles III and IV of the U.S.
3
allegations that the Appellees recklessly destroyed their property during fires in
April 2008, trespassed on their land, and conspired to defraud and defrauded them
of their land. The Appellants requested various injunctive, declaratory, punitive,
and compensatory relief.
B. Prior Similar Action
This is the second federal complaint of this nature that has been filed
regarding Appellants’ Lot 15A. In January 2008, Appellant Busse filed a
complaint that made near identical allegations to the instant complaint, with the
exception of the allegations regarding the April 2008 fire. Appellant Prescott was
not a party in the previous case.
On May 5, 2008, the district court dismissed the first complaint for lack of
subject matter jurisdiction and failure to state a claim. The district court
determined that it lacked jurisdiction because Busse had not yet pursued available
state court remedies and the Takings Clause claim therefore was not ripe for
review. To the extent that Busse’s complaint alleged that the taking of his property
raised a substantive due process claim under the Fourteenth Amendment, the
district court concluded that there was no independent substantive due process
Constitution; (4) the Fifth and Fourteenth Amendments; (5) the federal common law doctrines of
accretion and erosion; (6) the Federal Appraisal Standards, Uniform Standards of Professional
Appraisal Practice, and 12 U.S.C. §§ 3331-3351; (7) the Federal Declaratory Judgment Act, 28
U.S.C. § 2201; and (8) the 1862 Homestead Act.
4
claim concerning takings and that property rights were not fundamental rights that
would support a substantive due process claim. The district court dismissed
Busse’s procedural due process claims regarding Lee County Resolution 569/875
because the Resolution was a legislative act that was not subject to a procedural
due process claim and, even if it was not, Busse still had not alleged that Florida’s
post-deprivation remedy was inadequate. The district court also found that Busse
had not stated an equal protection claim because he had not alleged that there was a
similarly situated person for comparison and the state could not be a comparator.
The district court analyzed the other alleged bases for federal jurisdiction
and found that they were all inadequate.3 After dismissing Busse’s federal claims,
the district court declined to exercise supplemental jurisdiction over the state law
claims. Accordingly, the district court dismissed Busse’s first complaint without
prejudice.4 Busse appealed the district court’s dismissal of his first complaint, and
this Court affirmed. Busse v. Lee County, Florida, No. 08-13170, 2009 WL
549782 (11th Cir. Mar 5, 2009) (unpublished).
3
Specifically, the district court found that: (1) Articles III and IV of the U.S. Constitution
did not provide a basis for federal jurisdiction; (2) 28 U.S.C. § 1343 was not a basis for federal
jurisdiction because there were no federal civil rights claims before the court; (3) the 1899
Rivers and Harbors Act was inapplicable; (4) the 1862 Homestead Act had been repealed; (5) if
the federal common law doctrines of accretion and erosion existed, they did not provide a basis
for federal jurisdiction; and (6) the Federal Appraisal Standards were inapplicable.
4
The Appellants filed the complaint in the present case on the same day that the district
court dismissed the first complaint.
5
C. Dismissal of Current Action
The Appellees moved to dismiss the Appellants’ second complaint for the
same reasons outlined in the orders from the district court and this Court in the first
case. The district court ordered the Appellants to show cause why the complaint
should not be dismissed for lack of subject matter jurisdiction. The district court
stated that the complaint was nearly identical to the previous complaint filed by
Busse that was dismissed for lack of subject matter jurisdiction and that the
Appellants had not cured the deficiencies noted in the first dismissal order.
After receiving the Appellants’ responses, the district court granted the
Appellees’ motions to dismiss. The district court determined that the Appellants’
complaint was nearly identical to Busse’s complaint in the previous case. The
district court stated that it previously had explained its reasoning for dismissing
Busse’s claims and adopted the reasoning from its order in the first case.
The district court also denied the Appellants’ multiple motions for the
district court judge to recuse himself. The Appellants had requested that the
district court judge recuse himself because he had ruled against Busse in the
previous lawsuit and because the district court’s refusal to find that Resolution
569/875 was invalid showed that the judge was biased. The district court
determined that the Appellants had not asserted any reasonable basis for recusal.
6
Finally, one of the Appellees, Wilkinson, moved for sanctions against the
Appellants under Federal Rule of Civil Procedure 11(c). Wilkinson alleged that
(1) the Appellants knew the district court did not have jurisdiction over their
complaint because the court previously had dismissed an identical complaint and
(2) the complaint was filed in bad faith to harass the Appellees. Appellee
Wilkinson requested that the district court award him attorney’s fees and issue an
injunction preventing Busse from representing himself in the case and filing further
lawsuits in the court. The district court denied Wilkinson’s motion, but warned the
Appellants that they may be sanctioned in the future if they were to file another
complaint with similar allegations, file the same document numerous times, or
improperly designate a motion as an emergency.
The Appellants appeal the district court’s dismissal of their instant complaint
and denial of their motion for recusal.5 Appellee Wilkinson cross-appeals the
district court’s denial of his motion for sanctions.6
5
We review de novo questions concerning our subject matter jurisdiction, including
ripeness. See Elend v. Basham, 471 F.3d 1199, 1203 (11th Cir. 2006). We review de novo a
grant of a motion to dismiss for failure to state a claim, “accepting the allegations in the
complaint as true and construing them in the light most favorable to the plaintiff.” Swann v. S.
Health Partners, Inc.,
388 F.3d 834, 836 (11th Cir. 2004). “Courts must construe pro se
complaints more liberally than they would formal pleadings drafted by lawyers.” Brown v.
Crawford,
906 F.2d 667, 673 (11th Cir. 1990).
We review for abuse of discretion a district judge’s recusal decision. Thomas v. Tenneco
Packaging Co., Inc., 293 F.3d 1306, 1319-20 (11th Cir. 2002).
6
We review the denial of a motion for sanctions under Rule 11 for an abuse of discretion.
Beck v. Prupis, 162 F.3d 1090, 1100 (11th Cir. 1998).
7
II. DISCUSSION
A. Dismissal for Lack of Jurisdiction and Failure to State a Claim
Both the district court and this Court addressed the Appellants’ takings,
procedural and substantive due process, and equal protection claims in detail in the
previous case concerning the Appellants’ property. See Busse, No. 08-13170,
2009 WL 549782, at *2-4. The Appellants’ present complaint raises nearly
identical allegations and Appellants have not remedied the pleading deficiencies
that resulted in the first dismissal.7 The district court dismissed the Appellants’
present complaint for the same reasons stated in its dismissal order in the first case.
Accordingly, we affirm the district court’s dismissal for the same reasons stated in
our opinion in the first case. See
id. We repeat our reasoning briefly here.
First, the district court properly dismissed the Appellants’ Taking Clause
claim for lack of jurisdiction because it was not ripe. A just compensation claim is
not ripe “until the landowner has pursued the available state procedures to obtain
just compensation.” Eide v. Sarasota County, 908 F.2d 716, 721 (11th Cir. 1990).
Florida courts have recognized a reverse condemnation remedy, see Reahard v. Lee
7
The claims in the present complaint are not precluded under res judicata, collateral
estoppel, or the law of the case doctrine because this litigation involves slightly different parties
and the first complaint was not decided on the merits. Nevertheless, the analysis by the district
court and this Court in the first case applies equally here because the present complaint contains
essentially the same allegations as the first complaint.
8
County, 30 F.3d 1412, 1417 (11th Cir. 1994), and the Appellants have not alleged
that they pursued this remedy. This requirement applies even though the reverse
condemnation remedy was not recognized until after the alleged taking occurred.
Id. (“[A] Florida property owner must pursue a reverse condemnation remedy in
state court before his federal takings claim will be ripe, even where that remedy
was recognized after the alleged taking occurred.”).
Second, the district court properly dismissed the Appellants’ procedural due
process claim because they failed to allege that Florida’s post-deprivation remedies
were inadequate. Tinney v. Shores, 77 F.3d 378, 382 (11th Cir. 1996).
Third, the district court properly determined that the Appellants failed to
state a substantive due process claim. To the extent that the Appellants’
substantive due process claim was predicated on the denial of a state-defined
property right, they did not state a viable substantive due process claim.
Greenbriar Village, L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262 (11th
Cir. 2003) (stating that substantive due process protects fundamental rights
protected by the Constitution, which does not include state-created property
interests). Even if the alleged deprivation was the result of a legislative act, as
opposed to an executive act, the Appellants did not allege that there is a property
right at stake that is not already protected by the Takings Clause. Villas of Lake
9
Jackson, Ltd. v. Leon County, 121 F.3d 610, 615 (11th Cir. 1997) (“There is no
substantive due process ‘takings’ claim that would protect a specific property right
not already protected by the Takings Clause.”).
Fourth, the district court properly determined that the Appellants’
conclusory allegations failed to state an equal protection claim because, inter alia,
they did not allege that similarly situated persons had been treated disparately.
Thigpen v. Bibb County, 223 F.3d 1231, 1237 (11th Cir. 2000) (“[T]o properly
plead an equal protection claim, a plaintiff need only allege that through state
action, similarly situated persons have been treated disparately.”), abrogated on
other grounds by Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101,
122 S. Ct.
2061 (2002).
For the reasons above, and those articulated in our opinion affirming the
dismissal in Busse’s first complaint, we affirm the district court’s dismissal of the
Appellants’ complaint.8 Furthermore, because the district court correctly dismissed
the Appellants’ federal claims for lack of jurisdiction and failure to state a claim,
8
As stated in our opinion in the first case, we agree with the district court’s analysis of the
other bases for jurisdiction asserted in the Appellants’ complaint and conclude that none of them
could serve as a jurisdictional basis for Busse’s claims. See Busse, No. 08-13170, 2009 WL
549782, at *2 n.2. To the extent that the Appellants raised claims in their complaint that are not
addressed in their brief, those claims are abandoned on appeal. See Horsley v. Feldt,
304 F.3d
1125, 1131 n.1 (11th Cir. 2002). To the extent that the Appellants attempt to raise a Fourth
Amendment claim or any other claim for the first time on appeal, we will not consider them
because they were not raised in the district court. Access Now, Inc. v. Sw. Airlines Co.,
385
F.3d 1324, 1331-32 (11th Cir. 2004).
10
the district court did not abuse its discretion when it declined to exercise
supplemental jurisdiction over their remaining state law claims. See 28 U.S.C. §
1367(c)(3); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004).
B. Motion for the District Court to Recuse
The district court did not abuse its discretion in denying the Appellants’
motion for recusal. The district court’s rulings in Busse’s first case are not a
sufficient basis to question the district court’s impartiality in the present case so as
to warrant recusal. Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306, 1329
(11th Cir. 2002) (stating the general rule that “bias sufficient to disqualify a judge
must stem from extrajudicial sources” (quotation marks omitted)); United States v.
Meester,
762 F.2d 867, 884 (11th Cir. 1985) (“[A] motion for disqualification may
not ordinarily be based on the judge’s rulings in the same case.”). The Appellants
have not alleged, much less shown, that the district court made any remarks that
demonstrated a bias or prejudice against the Appellants. See
Thomas, 293 F.3d at
1329 (stating an exception to the general rule that bias must stem from
extrajudicial sources “when a judge’s remarks in a judicial context demonstrate
such pervasive bias and prejudice that it constitutes bias against a party” (quotation
marks omitted)).
C. Rule 11 Sanctions
11
Although this issue is closer, we cannot say that the district court abused its
discretion in denying Appellee Wilkinson’s motion for sanctions. The district
court was intimately familiar with the Appellants’ claims in both complaints and
their conduct throughout the litigation and was thus in the best position to
determine whether Rule 11 sanctions were appropriate. We note that the district
court has now warned the Appellants that their conduct may warrant sanctions in
the future if continued.
III. CONCLUSION
Therefore, we affirm the district court’s orders dismissing the Appellants’
complaint, denying the Appellants’ motion for recusal, and denying Appellee
Wilkinson’s motion for sanctions.
AFFIRMED.
12
