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                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-12374
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 5:12-cv-00188-WTH-PRL



FLAGSHIP LAKE COUNTY DEVELOPMENT NUMBER 5, LLC,
a Florida Limited Liability Company,

                                                             Plaintiff-Appellant,

                                   versus


CITY OF MASCOTTE, FLORIDA,

                                                            Defendant-Appellee,

JEFF KRULL, et al.,

                                                                      Defendants.

                        ________________________

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

                              (March 13, 2014)
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Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

       Plaintiff Flagship Lake County Development Number 5, LLC (“Flagship”)

appeals the district court’s dismissal of its procedural and substantive due process

claims, brought under 42 U.S.C. § 1983, against Defendant City of Mascotte (“the

City”). After careful review of the record and the briefs, we affirm.

                                     I. BACKGROUND

A.     Flagship’s First Amended Complaint1

       Plaintiff Flagship’s amended complaint arose out of the City’s denial of

Flagship’s application for approval of the “Second Amendment to Heron’s Glen

Planned Development Agreement, which was memorialized in Ordinance 2011-09-

500” (“the Ordinance”). This Ordinance would have re-zoned a 245-acre property

owned by Flagship, thereby allowing Flagship to construct waste disposal and

waste management facilities, methane gas recovery facilities, recycling facilities,

and wetlands habitat preservation areas on the property. Flagship alleged that the

manner in which the City Council denied the application was arbitrary and




       1
         We present the facts as alleged in Plaintiff Flagship’s first amended complaint. At this
point in the litigation, we must assume the facts set forth in the complaint as true. Anza v. Ideal
Steel Supply Corp., 

, 453, 

, 1994 (2006) (stating that on a motion to
dismiss, the court must “accept as true the factual allegations in the amended complaint”).


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capricious and violated both procedural and substantive due process guaranteed

under the Fourteenth Amendment to the United States Constitution. 2

       More specifically, Plaintiff Flagship claimed that the hearing on the

requested Ordinance “was an extremely emotional, heated, and unwieldy affair.”

While Flagship presented expert testimony and volumes of documentary evidence

in support of the Ordinance, the opponents responded only with “a plethora of

emotional, argumentative, hyperbolic, and unsubstantiated arguments and

opinions,” including “irrelevant stories about feared, potential odors, animals,

environmental degradation, and the like.”

       Plaintiff Flagship further explained that “confusion reigned” during the

hearing; for example, council members at times “could not even figure out what

they were voting on.” Amidst all this confusion, City Council members

demonstrated clear bias when they already stated their opposition to the Ordinance

before ever hearing any evidence. Other council members admitted to having

conducted their own research before the hearing, which Flagship contended was

tantamount to relying on ex parte communications. One council member relied on

an actual ex parte communication with an unidentified person about a landfill



       2
         Flagship also asserted a federal equal protection claim, which the district court
dismissed. Flagship has not appealed from that ruling. Given the dismissal of Flagship’s federal
claims, the district court did not address the merits of Flagship’s state law claims but remanded
them to state court. Flagship has not appealed this aspect of the district court’s order.
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located in a different community. And, several other council members could not

explain the reasons behind their votes against the Ordinance.

       What is more, the City Council members then discussed the Ordinance at

the next Mascotte City Council meeting—without providing notice to Flagship that

the Ordinance would be discussed at this meeting. Flagship also took issue with

the purpose of this post-hearing discussion: in an “ill-conceived attempt to cleanse

the basis for their denial of the [Ordinance],” the City Council members and the

City attorney “attempted to match the reasons of the Council Members in regard to

their vote with some of the testimony . . . given at the [prior] hearing.”

      Thereafter, the City Council issued an order containing its findings of fact

and conclusions of law underlying its denial of the Ordinance. The principal

reasons for the City Council’s denial were: (1) unpleasant odors, (2) attraction of

rodents, (3) traffic increase due to garbage trucks, and (4) a “purported requirement

of two distinct access point/entrance ways.” Flagship contended that these

findings were “not supported by substantial, competent evidence”; in fact, some of

the cited reasons were actually undermined by the evidence presented at the

hearing.

      Based on these allegations, Plaintiff Flagship asserted that the City violated

Flagship’s procedural and substantive due process rights. In response, the City




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moved to dismiss these claims under Rule 12(b)(6) of the Federal Rules of Civil

Procedure.

B.    The District Court’s Order

      The district court dismissed Flagship’s procedural due process claim. The

court pointed out that Flagship had not alleged that it had availed itself of the

remedies available under Florida law, namely the Florida Administrative

Procedures Act, Fla. Stat. § 120.68, which “provides for judicial review of agency

actions, including a local government’s zoning decisions.”

      The district court explained that these state remedies were available and

adequate “to cure any procedural due process defects” that may have occurred

during the City’s denial of Flagship’s application for the Ordinance. Given that

Flagship failed to pursue these available and adequate state remedies, the district

court concluded that Flagship’s procedural due process failed as a matter of law.

      The district court dismissed Flagship’s substantive due process claim for two

reasons: First, the district court reasoned that the “Due Process Clause . . . only

provides substantive due process protection against deprivations of fundamental

rights . . . created by the Constitution,” and state-created property rights are “not

subject to substantive due process protection.” Instead, “a substantive due process

claim predicated on an arbitrary and irrational deprivation of a property interest

should be treated as a procedural due process claim.”


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      Second, the district court concluded that “the City’s alleged actions in this

case were specifically directed at Flagship” and thus “were executive in nature.”

The district court explained that “executive deprivations of state-created rights . . .

cannot support a substantive due process claim.”

      Flagship timely appealed the district court’s dismissal of the procedural and

substantive due process claims.

                           II. STANDARD OF REVIEW

      This Court reviews “the grant of a motion to dismiss under Rule 12(b)(6) for

failure to state a claim de novo, accepting the allegations in the complaint as true

and construing them in the light most favorable to the plaintiff.” Belanger v.

Salvation Army, 

, 1155 (11th Cir. 2009). This Court also “reviews

questions of constitutional law de novo.” United States v. Duboc, 

,

1228 n.5 (11th Cir. 2012), cert. denied, 

(2013).

                                  III. DISCUSSION

A.    Flagship’s Procedural Due Process Claim

      As the district court observed, Flagship has not alleged that adequate state

remedies were unavailable to remedy any alleged deprivations of procedural due

process. Flagship could have availed itself of the remedies provided in the Florida

Administrative Procedure Act, Fla. Stat. §120.68, but did not. This is fatal to

Flagship’s procedural due process claim, as this Court has held that “‘only when


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the state refuses to provide a process sufficient to remedy the procedural

deprivation does a constitutional violation actionable under section 1983 arise.’”

Cotton v. Jackson, 

, 1330-31 (11th Cir. 2000) (quoting McKinney v.

Pate, 

, 1557 (11th Cir. 1994) (en banc)).

      In Cotton, the plaintiff was terminated after his employer, a state university,

found that the plaintiff had violated the university’s sexual harassment 

. The plaintiff asked the university and the Board of Regents to

hold a hearing regarding his termination, but both entities denied this request. 

The plaintiff sued the university president and members of the Board

of Regents in federal court under § 1983, alleging that the defendants’ refusal to

afford him a hearing was a violation of procedural due process. 

      This Court held that the plaintiff’s procedural due process claim failed as a

matter of law because the plaintiff could have pursued a writ of mandamus in state

court. 

We explained that “[i]t is the state’s failure to provide

adequate procedures to remedy the otherwise procedurally flawed deprivation of a

protected interest that gives rise to a federal procedural due process claim.” 

This rule “recognizes that the state must have the opportunity to remedy the

procedural failings of its subdivisions and agencies in the appropriate fora—

agencies, review boards, and state courts before being subjected to a claim alleging

a procedural due process violation.” 

marks omitted). Thus,


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“[i]f adequate state remedies were available but the plaintiff failed to take

advantage of them, the plaintiff cannot rely on that failure to claim that the state

deprived him of procedural due process.” 

concluded in Cotton

that “because adequate state remedies were available to provide Plaintiff with the

opportunity for a . . . hearing, he has failed to state a procedural due process

claim.” 

       Again and again, this Court has repeated the basic rule that a procedural due

process claim can exist only if no adequate state remedies are available. See

Reams v. Irvin, 

, 1266-67 (11th Cir. 2009) (“Because we conclude

that available state remedies were adequate to cure any erroneous deprivation of

[the plaintiff’s] protected interest in her equines, [the plaintiff] has failed to

establish that her procedural due process rights were violated”); Foxy Lady, Inc. v.

City of Atlanta, 

, 1238 (11th Cir. 2003) (“[E]ven if a procedural

deprivation exists . . ., such a claim will not be cognizable under § 1983 if the state

provides a means by which to remedy the alleged deprivation”); Horton v. Bd. of

Cnty. Comm’rs of Flagler Cnty., 

, 1300 (11th Cir. 2000) (no federal

procedural due process violation if state courts “generally would provide an

adequate remedy for the procedural deprivation the federal court plaintiff claims to

have suffered”); Bell v. City of Demopolis, 

, 192 (11th Cir. 1996)

(affirming district court’s dismissal of procedural due process in employment


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discrimination context because “Alabama has available a satisfactory means by

which [the plaintiff] can seek redress for any procedural due process deprivation”);

Narey v. Dean, 

, 1528 (11th Cir. 1994) (concluding that because the

plaintiff “did not take advantage of the opportunity for state court review, [the

plaintiff] cannot now claim that the state deprived him of procedural due process”).

       Flagship’s complaint failed to allege that adequate state remedies were

unavailable to cure the procedural deprivations allegedly committed by the City.

Nor did the complaint allege that Flagship attempted to avail itself of the remedies

provided in the Florida Administrative Procedure Act. Our binding precedent

therefore bars Flagship’s procedural due process claim as a matter of law.

      Flagship, instead, relies on cases holding “that there is no requirement that a

plaintiff exhaust his administrative remedies before filing suit under § 1983.”

Beaulieu v. City of Alabaster, 

, 1226-27 (11th Cir. 2006) (citing

Patsy v. Board of Regents, 

, 516, 

, 2568 (1982)). That

concept is true; but it is also inapposite here. As this Court explained in Cotton,

the rule that a section 1983 claim is not stated unless inadequate state procedures

exist to remedy an alleged procedural deprivation “is not an exhaustion

& n.2. Instead, it is “a recognition that procedural

due process violations do not even exist unless no adequate state remedies are

available.” 

n.2. In other words, the unavailability of adequate remedies


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is an element of a procedural due process claim—as opposed to an exhaustion

requirement.

B.    Substantive Due Process

      Flagship’s substantive due process claim is also barred by this Court’s

precedent. “The substantive component of the Due Process Clause protects those

rights that are ‘fundamental’ that is, rights that are ‘implicit in the concept of

ordered liberty.’” 

(quoting Palko v. Connecticut, 

, 325, 

, 152 (1937)). However, “areas in which substantive

rights are created only by state law . . . are not subject to substantive due process

protection under the Due Process Clause because ‘substantive due process rights

are created only by the Constitution.’” 

of Univ. of Mich. v.

Ewing, 

, 229, 

, 515 (1985) (Powell, J., concurring)).

      “The list of state-created rights . . . include[s] land-use rights like the zoning

restrictions at issue here,” Lewis v. Brown, 

, 1273 (11th Cir. 2005),

because these rights “are created and their dimensions are defined by existing rules

or understandings that stem from an independent source such as state law,”

Greenbriar Village, L.L.C. v. Mountain Brook, City, 

, 1262 (11th

Cir. 2003) (internal quotation marks omitted). Because Flagship predicates its

claim on the denial of its state-granted-and-defined land-use rights, “no substantive

due process claim is viable.” Id.; 

(holding that a claim


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based on the denial of a request for re-zoning is not viable as a substantive due

process claim).

      The rights Flagship advances here are indistinguishable from those asserted

by the plaintiffs in Lewis. There, the plaintiffs also alleged a substantive due

process violation after a local government entity denied the plaintiffs’ request to

re-zone their property. 

. The plaintiffs contended that this

denial was arbitrary and capricious. 

explained in Lewis that such a land-use claim falls under the

general rule that “areas in which substantive rights are created only by state law are

not subject to substantive due process protection.” 

(internal

quotation marks omitted). An exception to the general rule applies when “an

individual’s state-created rights are infringed by legislative act.” 

In

that scenario, “the substantive component of the Due Process Clause generally

protects [the individual] from arbitrary and irrational action by the government.”

“[n]on-legislative, or executive, deprivations of state-created

rights, which would include land-use rights, cannot support a substantive due

process claim, not even if the plaintiff alleges that the government acted arbitrarily

and irrationally.” 

marks omitted).

      The question in Lewis was therefore whether the government decision “was

a legislative act or an executive act.” 

squarely held that the local


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government’s denial of a request to re-zone the plaintiffs’ property was “a textbook

‘executive act’” because this decision affected only a limited number of people,

namely the plaintiffs. 

result, the denial of the request for re-zoning was

an executive act that could not form the basis of a substantive due process claim.

here. Flagship has not distinguished itself from the plaintiffs in

Lewis. Flagship asserts a state-created property right; more specifically, it claims

that the City’s arbitrary and capricious denial of the request to re-zone Flagship’s

property impinges on the company’s land-use rights. The City’s decision was a

“textbook executive act” because it affected only Flagship. Thus, Flagship’s claim

is subject to this Court’s general rule that no substantive due process claim exists

for executive acts affecting state-created land-use rights. See id.; Greenbriar

Village, 

.3

                                    IV. CONCLUSION

       For the forgoing reasons, we affirm the district court’s dismissal of

Flagship’s procedural and substantive due process claims.

       AFFIRMED.



       3
        We reject Flagship’s argument that the Supreme Court’s decision in Lingle v. Chevron
U.S.A, Inc., 

, 

(2005) provides a basis for Flagship’s claim. Lingle
addressed a Fifth Amendment takings claim arising from a rent-control statute, see 

, not a substantive due process claim arising out of a zoning decision.
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