Case: 13-11373    Date Filed: 09/18/2013   Page: 1 of 3


                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-11373
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 2:10-cv-00735-UA-DNF

TIMOTHY M. BUNCK,
LINDA J. BUNCK,

                                                             Plaintiff -Appellants,

                                     versus

GARY R. KING,
WILLIAM A. BOYD,
DOLORES D. MENENDEZ,
CITY OF CAPE CORAL,
as a corporate municipality,
CITY OF CAPE CORAL,
as a person under the meaning of 1983,

                                                           Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                              (September 18, 2013)
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Before DUBINA, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

      Timothy and Linda Bunck appeal pro se the dismissal of their third amended

complaint against the City of Cape Coral, Florida, and its officials, Gary King,

William Boyd, and Delores Menendez. See 42 U.S.C. § 1983. The district court

dismissed the Buncks’ third amended complaint for failure to state a claim for

relief. See Fed. R. Civ. P. 12(b)(6). We affirm.

      The Buncks alleged that they paid sewer fees to the City of Cape Coral,

Florida, for 18 years when, unbeknownst to them, their home was connected to a

septic tank and City officials then ignored four letters in which the Buncks

demanded that the City refund those fees. The Buncks also alleged that City

Ordinance 19-2.5 created an “irrebuttable presumption” that their property had

been connected to the city sewer system and required them to pay sewer charges.

The Buncks’ complaint alleged an infringement of their liberty and property

interests protected by the Fifth and Fourteenth Amendments and a violation of

their right to equal protection under the Fourteenth Amendment.

      The district court did not err by dismissing the Buncks’ complaint. The

Buncks alleged that the officials’ failure to respond to the demand letters or

promptly provide a refund violated their right to substantive due process, but the

Buncks failed to allege that they were deprived of any recognized fundamental


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right, see Albright v. Oliver, 

, 272, 

, 812 (1994), or that

the official inaction they alleged could “properly be characterized as arbitrary, or

conscience shocking, in a constitutional sense,” Cnty. of Sacramento v. Lewis, 

, 847, 

, 1717 (1998) (quoting Collins v. City of Harker

Heights, Tex., 

, 128, 

, 1070 (1992)). The Buncks also

complained that Ordinance 19-2.5 created an “irrebuttable presumption” that

violated their right to substantive due process, but the Buncks failed to identify any

fundamental right violated by the ordinance, which we review for a rational basis.

See Bannum, Inc. v. City of Fort Lauderdale, Fla., 

, 822 (11th Cir.

1998). Because the ordinance is rationally related to the legitimate interests of the

City in disposing of waste and being compensated for that service, the Buncks

failed to state a claim of a denial of substantive due process. Although the district

court also addressed on the merits the Buncks’ claims that the failure to respond to

their requests for a refund deprived them of property without adequate process and

denied them “equal protection of the laws,” the Buncks expressly abandoned those

claims on appeal.

      We AFFIRM the dismissal of the Buncks’ complaint.




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