Robert Rogers v. Jackson County Florida, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11732
Non-Argument Calendar
____________________
ROBERT M. ROGERS,
Plaintiff-Appellant,
versus
JACKSON COUNTY FLORIDA,
A Florida County and Political Subdivision of the
State of Florida,
JAMES D. PEACOCK,
Individually and in His Capacity as County Commissioner,
Defendants-Appellees.
____________________
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2 Opinion of the Court 23-11732
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:22-cv-00237-TKW-MJF
____________________
Before WILSON , L UCK, and ANDERSON , Circuit Judges.
PER CURIAM:
Robert Rogers, pro se, appeals the district court’s dismissal of
his complaint against Jackson County, Florida, and one of its
County Commissioners, James Peacock. He argues that the
County and Peacock unconstitutionally deprived him of property
without due process of law and that Peacock violated his equal pro-
tection rights because Peacock partially destroyed an earthwork
berm on Rogers’s property.1
I. DISCUSSION
We review a district court’s order granting a motion to dis-
miss de novo, accepting all facts in the complaint as true and draw-
ing all reasonable inferences in favor of the plaintiff. Randall v.
1 Rogers also moves for leave to amend his pleadings, stating that newly dis-
covered evidence would “add credence” to his testimony and refute Peacock’s
testimony. Because Rogers’s motion presents no new legal arguments and
merely seeks to introduce new evidence not relevant to resolution of the con-
stitutional issues on appeal, we deny his motion as moot.
The district court dismissed state law claims against all of the Defendants, de-
clining to exercise supplemental jurisdiction of the state law claims after dis-
missal of the federal claims.
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23-11732 Opinion of the Court 3
Scott, 610 F.3d 701, 705 (11th Cir. 2010). We write only for the par-
ties who are already familiar with the relevant facts. Therefore, we
set out only such facts as are necessary for the parties to understand
our rulings.
A. Procedural Due Process Claim
A plaintiff bringing a procedural due process claim must
show that he was (1) deprived of a constitutional property interest
(2) by state action (3) through a constitutionally inadequate pro-
cess. Spencer v. Benison, 5 F.4th 1222, 1232 (11th Cir. 2021);
see U.S. Const. amend. XIV, § 1. An “unauthorized intentional dep-
rivation of property by a state employee”—as opposed to an estab-
lished state procedure designed to deprive property—does not vio-
late the Due Process Clause if a meaningful post-deprivation rem-
edy is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984); see Nat’l
Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga.,
633 F.3d 1297, 1317-18 (11th Cir. 2011). Under Florida law,
a county’s board of commissioners has the power to maintain the
county’s property collectively, not the individual commissioners.
Kirkland v. State, 97 So. 502, 508 (Fla. 1923); see also Fla. Stat.
§ 125.01. A district court can consider the exhibits attached to
a complaint when ruling on a motion to dismiss. Grossman v. Na-
tionsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000).
Here, Rogers has not stated a procedural due process claim.
His complaint does not allege facts which would show that the dep-
rivation of property was through a constitutionally inadequate pro-
cess. See Spencer, 5 F.4th at 1232. Rogers’s complaint repeatedly
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4 Opinion of the Court 23-11732
characterizes Peacock’s actions as being unauthorized, and state
law shows that Peacock does not possess the power to unilaterally
act on the County’s behalf. See Kirkland, 97 So. at 508. Peacock’s
alleged unauthorized intentional deprivation of Rogers’ property
does not require pre-deprivation remedies if a meaningful post-
deprivation remedy is available. Hudson, 468 U.S. at 533. A mean-
ingful post-deprivation remedy does exist, as shown by Rogers’s
state-law claims for trespass and nuisance against the County, thus
satisfying the Due Process Clause. Id. Finally, the district court did
not convert the motions to dismiss to summary judgment motions
by considering exhibits attached to the complaint. See Grossman,
225 F.3d at 1231. Accordingly, we affirm as to this issue.
B. Equal Protection Claim Against Peacock
A “class of one” claim under the Equal Protection Clause re-
quires a plaintiff to show that he has been intentionally treated dif-
ferently from other similarly situated people and that the govern-
ment lacked a rational basis for the different treatment. Chabad
Chayil, Inc. v. Sch. Bd. of Miami-Dade Cnty., 48 F.4th 1222, 1233
(11th Cir. 2022); see U.S. Const. amend. XIV, § 1. The comparator
must be similarly situated in all relevant respects. Chabad Chayil,
48 F.4th at 1233.
Though pro se briefs are construed liberally, pro se litigants
abandon issues not briefed on appeal. Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008). An issue is not briefed on appeal when it
is not specifically and clearly identified by a party in its opening
brief. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330
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23-11732 Opinion of the Court 5
(11th Cir. 2004). For an issue to be adequately briefed, it must be
plainly and prominently raised and must be supported by argu-
ments and citations to the evidence and to relevant authority.
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.
2014).
Here, even construing Rogers’s pro se brief liberally, he has
abandoned his equal protection claim. While his opening brief
mentions the issue, he does not address the district court’s reasons
for granting the motion to dismiss on the claim and does not cite
to relevant authority on the issue. See Sapuppo, 739 F.3d at 681.
Even assuming that the issue were not abandoned, Rogers’s
complaint does not state a “class of one” equal protection claim.
See Chabad Chayil, 48 F.4th at 1233. Rogers has identified no simi-
larly situated comparators. The presence of the berm on Rogers’s
land meant that he was not similarly situated to his neighbor,
Colby Willoughby. Thus, the district court correctly held that
there was a rational basis for Peacock to treat Rogers’s land differ-
ently from Willoughby’s. See id. Therefore, the district court did
not err in dismissing the equal protection claim.
AFFIRMED
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