BEVERLY SPENCER, C.B.S. PROPERTIES LLC, B & V WRECKER SERVICE INC v. SHERIFF JONATHAN BENISON
No. 18-14397
United States Court of Appeals, Eleventh Circuit
July 16, 2021
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14397
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D.C. Docket No. 7:16-cv-01334-LSC
BEVERLY SPENCER,
C.B.S. PROPERTIES LLC,
B & V WRECKER SERVICE INC,
Plaintiffs-Appellees,
versus
SHERIFF JONATHAN BENISON,
in his individual and official capacities,
Defendant-Appellant,
DREAM INC,
BELLE MERE PROPERTIES, LLC,
ACCUITY CAPITAL GROUP LLC,
BERNARD GOMEZ,
individually and as registered agent of
Belle Mere Properties LLC,
CHE D. WILLIAMSON,
individually and as registered agent of
Belle Mere Properties LLC,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Alabama
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(July 16, 2021)
Before NEWSOM and BRANCH, Circuit Judges, and BAKER,* District Judge.
Sheriff Jonathan Benison appeals from the district court’s denial of summary judgment to him in this
discretionary authority when he ordered Spencer to remove the cones and vehicles and that Spencer failed to present adequate evidence of a constitutional violation to sustain his § 1983 claims, we reverse.
I. Background1
A. Facts
On April 1, 2011, Belle Mere Properties, LLC, purchased a parcel of real estate from Spencer.2 As part of the sale, Spencer granted Belle Mere “an easement of 25 feet on either side of the existing power line . . . for the purpose of ingress and egre[ss].” Belle Mere then leased the property to Accuity Capital Group, LLC, which leased the property to Dream, Inc., which began operating a bingo hall on the property, called Frontier Bingo.
Shortly thereafter, Spencer and Belle Mere began to disagree over the boundaries of the easement. In late 2015 or early 2016, Belle Mere decided to expand a previously constructed roadway running through the easement from Frontier Bingo to U.S. Highway 11. On January 13, 2016, Spencer called 911 to
report that a bulldozer was trespassing on his property. A sheriff’s deputy responded to the call and asked the bulldozer operator to stop working. The bulldozer operator complied with the deputy’s request. On January 18, 2016, Spencer again called 911 to report that a bulldozer was trespassing on his property. Another sheriff’s deputy responded to the call and asked the bulldozer operator to stop working, and the bulldozer operator complied. Finally, on February 24, 2016, Spencer called 911 to complain about continued construction. This time, Benison responded to the call.
When Benison arrived, he observed that Spencer had placed cones and vehicles to block construction from taking place.3 He
He then said “I’ve got customers in here. People got customers in here. You can’t
block these folks.” Spencer denied that his cones and vehicles were preventing people from entering or exiting the bingo hall.5
Benison then ordered Spencer to remove the cones and vehicles and threatened to arrest Spencer if he continued to block the road. While at the scene, Benison spoke by phone with Spencer’s lawyer. Spencer’s lawyer informed Benison that “they were attempting to get an injunction to prevent the construction workers from coming onto Spencer’s property.”6 Spencer alleges that, as a result of Benison’s order, he stopped confronting Belle Mere about its construction and that, accordingly, Belle Mere ultimately was able to complete the construction of a roadway that encroached on his property. Belle Mere’s road construction, Spencer contends, deprived him of his property.
Spencer asserts that Benison had a personal financial interest in the success of Frontier Bingo. Under the Alabama Constitution, Benison had the authority to “promulgate rules and regulations for the licensing, permitting, and operation of bingo games within [Greene County].”
and Regulations provided that Benison had the authority to license and regulate bingo halls in Greene County and that the Greene County Sherriff’s Office would receive half of each $2,500.00 license fee paid by the bingo halls. Subsequent amendments to the Rules and Regulations provided that the Greene County Sheriff’s Office would receive $110 a month for each electronic bingo machine.
B. Procedural History
On August 16, 2016, Spencer sued Benison in his individual and official capacities under
On October 9, 2018, the district court denied Benison’s motion for summary judgment. It found that Benison was not entitled to qualified immunity on Spencer’s individual capacity claims because he “failed to establish that he was acting within the scope of his discretionary authority” when he ordered Spencer to remove the cones and vehicles. It also found that Benison was not entitled to summary judgment on Spencer’s individual or official capacity claims because Spencer had presented sufficient evidence of a constitutional violation, at that stage of the proceedings, to sustain his § 1983 constitutional and conspiracy claims.9
Benison timely appealed.
II. Standard of Review
We review the district court’s denial of qualified immunity to Benison de novo. Patel v. City of Madison, 959 F.3d 1330, 1336 (11th Cir. 2020). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III. Appellate Jurisdiction
As an initial matter, Spencer argues that we lack appellate jurisdiction over this interlocutory appeal because Benison has only appealed issues of evidentiary sufficiency. See Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir. 1996) (“[W]e lack interlocutory appellate jurisdiction . . . where the sole issues on appeal are issues of evidentiary sufficiency.”). In general, “we are . . . barred from entertaining appeals of non-final orders.” Hall v. Flournoy, 975 F.3d 1269, 1274 (11th Cir. 2020); see
(holding that we may exercise jurisdiction “where the denial
We have jurisdiction over Benison’s appeal because it turns on issues of law. Benison disputes the level of generality the district court used to assess the scope of his discretionary authority, which is an issue of law. See Estate of Cummings v. Davenport, 906 F.3d 934, 940 (11th Cir. 2018) (treating the scope of an officer’s discretionary authority as an issue of law). He also challenges whether Spencer can establish a “violation of a constitutional right” and whether Spencer’s “constitutional right[s] [were] ‘clearly established’ at the time” he acted—both issues of law as well. Cottrell, 85 F.3d at 1485 (quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). Accordingly, we have appellate jurisdiction to entertain this appeal.
IV. Spencer’s Individual Capacity Claims
The district court found that Benison acted outside the scope of his discretionary authority when he ordered Spencer to remove the cones and vehicles and that Spencer sufficiently demonstrated, at this stage of the proceedings, that Benison violated clearly established law under the Due Process Clause of the Fourteenth Amendment and the Takings Clause of the Fifth Amendment.
Benison argues that the district court erred in denying him summary judgment on Spencer’s individual capacity claims on qualified immunity grounds.
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To invoke the defense of qualified immunity, a government official must have been acting within the scope of his “discretionary authority” when the allegedly wrongful acts occurred. Grider, 618 F.3d at 1254 n.19. After a government official establishes that he was acting within the scope of his discretionary authority, the burden shifts to the plaintiff to show that the official’s conduct (1) violated federal law (2) that was clearly established at the relevant time. Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). This “two-pronged analysis may be done in whatever order is . . . most appropriate for the case.”11 Grider, 618 F.3d at 1254 (citing Pearson, 555 U.S. at 236).
A Scope of Benison’s Discretionary Authority
Benison argues that the district court erred when it found that he was acting outside the scope of his discretionary authority when he ordered Spencer to remove the cones and vehicles. To prove that he acted within the scope of his discretionary authority, Benison was required to show that he acted: “(1) . . . pursuant to the performance of his duties, and (2) within the scope of his authority.” Davenport, 906 F.3d at 940 (quoting Harbert Int’l, 157 F.3d at 1282). Put differently, he was required
The district court framed its inquiry as “whether it is within a sheriff’s responsibilities as a law enforcement officer to order the removal of a private landowner’s property, while it is on that landowner’s property, absent a court order.” But this framing of the inquiry was erroneous because it failed to strip out the allegedly illegal conduct—ordering the removal of a private landowner’s property, while it is on that landowner’s property, absent a court order. See Harbert Int’l, 157 F.3d at 1282 (“The inquiry is not whether it was within the defendant’s authority to commit the allegedly illegal act. Framed that way, the inquiry is no more than an untenable tautology.” (quotation omitted)); Carruth v.
Bentley, 942 F.3d 1047, 1055 (11th Cir. 2019) (“A plaintiff cannot plead around qualified immunity simply by saying that the official was animated by an unlawful purpose. The exception would swallow the rule.”).
Instead, the district court should have “look[ed] to the general nature of [Benison’s] action, temporarily putting aside the fact that it may have been committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or under constitutionally inappropriate circumstances.” Davenport, 906 F.3d at 940 (quoting Mikko v. City of Atlanta, 857 F.3d 1136, 1144 (11th Cir. 2017)); see Harbert Int’l, 157 F.3d at 1282 (asking “whether the act complained of, if done for a proper purpose, would be within, or reasonably related to, the outer perimeter of an official’s discretionary duties” (quotation omitted)). “[T]o pass the first step of the discretionary function test for qualified immunity, the defendant must have been performing a function that, but for the alleged constitutional infirmity, would have fallen with his legitimate job description.” Holloman, 370 F.3d at 1266. “[W]e must be sure not to characterize and assess the defendant’s act at too high a level of generality” because “[n]early every act performed by a government employee can be described, in general terms, as ostensibly ‘furthering the public interest.’” Id. Thus, “[i]f we jump to such a high level of abstraction, it becomes impossible to determine whether the employee was truly acting within the proper scope of his job-related activities.” Id.
We therefore must evaluate a government official’s actions at “the minimum level of generality necessary to remove the constitutional taint.” Id.
“We look to state law to determine the scope of [Benison’s] discretionary authority.” Davenport, 906 F.3d at 940. Under Alabama law, “[a] sheriff and his or her deputies are law-enforcement officers authorized to preserve peace and public order.” Ex parte Fielding, 86 So. 3d 354, 358 (Ala. 2011). Sheriffs have the duty to “ferret out crime” and “perform such . . . duties as are or may be imposed by law.”
Benison also acted “through means that were within his power to utilize.” See Davenport, 906 F.3d at 940 (quoting Holloman, 370 F.3d at 1265). Here, Benison carried out his duties by verbally commanding Spencer to remove the cones and vehicles and by threatening arrest should he fail to comply. Spencer has not argued that these specific means were beyond Benison’s “power to utilize.” Thus, we conclude that Benison was acting within the scope of his discretionary authority.
B. Due Process Clause
Benison argues that the district court erred in finding that Spencer had presented sufficient evidence, at this stage of the proceedings, to prove a violation of clearly established law under the Due Process Clause of the Fourteenth Amendment.12 “Procedural due process requires notice and an opportunity to be heard before any governmental deprivation of a property interest.” Vineyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002) (quoting Zipperer v. City of Fort Myers, 41 F.3d 619, 623 (11th Cir. 1995)). To prevail on his § 1983 due process claim, Spencer was required to prove three elements: “(1) a deprivation of a constitutionally-protected . . . property interest; (2) state action; and (3) constitutionally-inadequate process.” Catron v. City of St. Petersburg, 658 F.3d
1260, 1266 (11th Cir. 2011) (quoting Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003)). The district court found that, at this stage of the proceedings, Spencer “presented sufficient evidence that [he] was deprived of a constitutionally protected property interest,” “that there was state action,” and that there was constitutionally-inadequate process.
Benison does not dispute that his order to move cones and vehicles constituted “state action,” but he contends that the district court erred by finding that his actions caused a deprivation of a constitutionally-protected property interest. “A § 1983 claim requires proof of an affirmative causal connection between the defendant’s acts or omissions and the alleged constitutional deprivation.” Troupe v. Sarasota Cnty., 419 F.3d 1160, 1165 (11th Cir. 2005); see Porter v. White, 483 F.3d 1294, 1306 n.10 (11th Cir. 2007). Spencer alleges that he suffered “the taking and disturbance of [his] soil and timber” and the denial of his “use of and access to [his] property.”13 The district court assumed that Benison’s order to remove the cones and vehicles caused Spencer to suffer those injuries. But Spencer provided no evidence that Benison’s order caused him to
suffer those injuries. Instead, he alleged that “as a result of Sheriff Benison’s order,
This allegation was plainly inadequate to establish the required causal connection between Benison’s order and the alleged deprivation. Under § 1983, Benison was “responsible for the natural and foreseeable consequences of [his] actions.” Jackson v. Sauls, 206 F.3d 1156, 1168 (11th Cir. 2000); see id. (“[A] plaintiff must show that . . . [their] injuries and damages were the reasonably foreseeable consequences of the tortious acts or omissions in issue.”). But Spencer’s decision to stop confronting Frontier Bingo about its construction was not a natural and foreseeable consequence of Benison’s order, and Spencer thus failed to demonstrate that Benison’s actions caused him to be deprived of a constitutionally-protected property interest. See Carruth v. Bentley, 942 F.3d 1047, 1056 (“The requisite causal relation for a § 1983 claim does not exist when the continuum between Defendant’s action and the ultimate harm is occupied by the conduct of deliberative and autonomous decision-makers.” (internal quotation marks and citation omitted)). In fact, after Benison issued the order, Spencer’s lawyers informed him that they were seeking an injunction to prevent the construction from continuing. Spencer’s later decision not to pursue litigation or
continue to seek an injunction in state court lacks an adequate causal connection to Benison’s order.
Because Spencer failed to show that Benison’s actions caused a deprivation of a constitutionally-protected property interest, Benison is entitled to summary judgment on Spencer’s due process claim in his individual capacity.
C. Takings Clause
Benison also argues that the district court erred in finding that Spencer presented sufficient evidence, at this stage of the proceedings, to prove a violation of clearly established law under the Takings Clause of the Fifth Amendment.14 A taking must be the “intended or . . . foreseeable result of authorized government action.” Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 39 (2012); see Ridge Line, Inc. v. United States, 346 F.3d 1346, 1355 (Fed. Cir. 2003) (“[A] taking only results when the government intends to invade a protected property interest or the asserted invasion is the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.” (internal quotation marks and citation omitted)). Spencer had “the burden of proof to establish that the government action caused [his] injury.” St. Bernard
Par. Gov’t v. United States, 887 F.3d 1354, 1362 (Fed. Cir. 2018); see also In re Upstream Addicks & Barker (Tex.) Flood-Control Reservoirs, 146 Fed. Cl. 219, 257 (2019) (“Establishing causation is a vital component of the foreseeability inquiry.”). Foreseeability in this context is an objective inquiry. See Moden v. United States, 404 F.3d 1335, 1344 n.3 (Fed. Cir. 2005).
The district court found that Benison caused a taking by giving “Frontier Bingo’s customers a ‘continuous right to pass to and fro’” across Spencer’s property.15 But Benison did not give Frontier
United States, 552 F.3d 1373, 1379 (Fed. Cir. 2009) (“[I]njury may not be foreseeable if an intervening cause breaks the chain of causation.” (quotation omitted)); L & W Constr. LLC v. United States, 148 Fed. Cl. 417, 424 (2020) (“A mere causal link through the agency of a third force, perhaps appropriate in a tort context, is not sufficient to allege a taking.”). Because Spencer failed to prove that Benison’s order caused a taking, Benison is entitled to summary judgment on Spencer’s takings claim in his individual capacity.
V. Spencer’s § 1983 Conspiracy Claim
Benison next argues that he is entitled to summary judgment on Spencer’s § 1983 conspiracy claim. The district court denied Benison’s motion for summary judgment on that claim, finding that Spencer “presented sufficient evidence for a reasonable jury to infer that . . . Benison reached an agreement to violate [his] constitutional rights.”
Because Spencer failed to establish an underlying violation of his constitutional rights, which is required to sustain a § 1983 conspiracy claim, we reverse the district court’s denial of Benison’s motion for summary judgment on Spencer’s § 1983 conspiracy claim. See Grider, 618 F.3d at 1260 (“A plaintiff may state a § 1983 claim for conspiracy to violate constitutional rights by showing a conspiracy existed that resulted in the actual denial of some underlying right.”); Corey Airport Servs., Inc. v. Decosta, 587 F.3d 1280, 1288 (11th Cir. 2009) (per
curiam) (noting that “a plaintiff must demonstrate a denial of constitutional rights to sustain a conspiracy claim under § 1983”).
VI. Spencer’s Official Capacity Claims
Benison’s final argument is that he is entitled to summary judgment on Spencer’s official capacity claims. Although “[w]e do not have interlocutory appellate jurisdiction to review a denial of summary judgment on an official capacity claim standing alone,” Hartley v. Parnell, 193 F.3d 1263, 1272 (11th Cir. 1999), we may exercise pendant appellate jurisdiction to review those claims to the extent that they are “inextricably intertwined with an appealable decision,” Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir. 2000) (quotation omitted). “Matters may be sufficiently intertwined where they implicate the same facts and the same law.” Smith v. LePage, 834 F.3d 1285, 1292 (11th Cir. 2016) (internal quotation marks and citation omitted; alteration adopted). Here, we choose to exercise pendant appellate jurisdiction over Spencer’s official capacity
We have already concluded that Spencer failed to establish a violation of the Due Process Clause of the Fourteenth Amendment or of the Takings Clause of the Fifth Amendment. Because those alleged violations form the basis of Spencer’s official capacity claims, the two sets of claims “implicate the same facts and the
same law,” Smith, 834 F.3d at 1292 (quotation omitted; alteration adopted), and are inextricably intertwined. Because Spencer failed to establish a violation of his constitutional rights, Benison is entitled to summary judgment on Spencer’s official capacity claims. See Hudgins v. City of Ashburn, 890 F.2d 396, 407 (11th Cir. 1989).
VII. Conclusion
For these reasons, we reverse the district court’s order denying Benison’s motion for summary judgment.
REVERSED.