Chabad Chayil, Inc. v. The School Board of Miami-Dade County Florida, et al.

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10619
____________________
CHABAD CHAYIL, INC.,
Plaintiff-Appellant,
versus
THE SCHOOL BOARD OF
MIAMI-DADE COUNTY, FLORIDA,
and MIAMI-DADE COUNTY, FLORIDA,
OFFICE OF INSPECTOR GENERAL,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-21084-RNS
____________________
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2 Opinion of the Court 21-10619
Before NEWSOM and MARCUS, Circuit Judges, and C OVINGTON,∗
District Judge.
C OVINGTON, District Judge:
In 2019, following a government investigation into an
afterschool program run by Plaintiff Chabad Chayil, Inc.,
Defendant Miami-Dade County Public Schools (“MDCPS”) barred
Chabad from continuing to use its facilities. Chabad sued both
MDCPS and the investigating authority—Miami-Dade County’s
Office of Inspector General (“OIG”)—for alleged violations of its
federal constitutional rights. The district court dismissed those
claims with prejudice and without leave to amend, and Chabad
appealed. Following careful consideration and oral argument, we
affirm.
I
According to the amended complaint, Chabad is a non-profit
organization that runs numerous programs for the Jewish
community and wider community in Miami-Dade County. As part
of its programming, Chabad operated a popular afterschool
program—the Community Hebrew Afterschool Program
(“CHAP”)—from 2008 until the end of the 2018-19 school year. By
the time it ceased operations in 2019, CHAP had grown to serve
approximately 200 students at two locations, Aventura Waterways
∗ Honorable Virginia M. Covington, United States District Judge for the
Middle District of Florida, sitting by designation.
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21-10619 Opinion of the Court 3
K-8 (“Waterways K-8”) and Virginia A. Boone Highland Oaks
Elementary School (“Boone Elementary”).
Chabad alleged that when it first saw the need for an
afterschool program in 2008, its President, Rabbi Kievman,
approached Dr. Martin Karp, a member of the MDCPS School
Board. Chabad inquired as to how CHAP could utilize MDCPS
facilities, and Dr. Karp directed the organization to Luis Bello, the
principal of Waterways K-8. Bello procured forms from MDCPS’s
Facility Use Office and forwarded them to Chabad. “At Bello’s
direction,” Chabad submitted the forms provided, and MDCPS
approved Chabad’s application for the 2008-09 school year. Chabad
repeated the same process for the 2009-10 school year. Chabad
offered the CHAP program at Waterways K-8 for the 2008-09 and
the 2009-10 school years on a part-time basis.
After obtaining a funding grant, CHAP operated as a full-
time program beginning in the 2010-11 school year and for every
year thereafter. The year it obtained the funding, Chabad
approached Bello about expanding CHAP into a full-time
afterschool program, and Bello gave Chabad a different form to fill
out: an MDCPS Application for Temporary Use of School Building
Facilities of the Miami-Dade County Public Schools—Temporary
Use Agreement (“TUA”). This form was different from the one
CHAP previously filled out during the first two years of its
program.
Under MDCPS policy, school administrators may approve
the temporary use of school facilities for non-school educational,
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4 Opinion of the Court 21-10619
civic, cultural, recreational, artistic, or charitable programs. The
renter must submit a TUA and prepay rental charges unless the fee
is waived by MDCPS officials. MDCPS may waive the rental fee,
but only if the meeting or program is open to the public and offered
free of charge.1
According to Chabad, MDCPS never communicated the fee
waiver policy to Chabad and never informed Chabad that it could
charge fees to its students and in turn pay rental charges to
MDCPS. Similarly, Chabad alleged that the principals at
Waterways K-8 and Boone Elementary requested the yearly fee
waivers for CHAP, and Chabad was unaware that its use of
MDCPS facilities free of charge was contingent upon CHAP
offering its services for free. Nonetheless, Chabad received fee
waivers each year until 2019.
Beginning in approximately 2017, the OIG began
investigating Chabad in response to an anonymous complaint. The
anonymous complaint read in pertinent part:
School board member Dr. Martin Karp and his
assistant, Gerald Bloomstein[,] have aided a religious
organization named Chabad Chayil, which they are
friendly with and participate in their programs by
helping them gain access to using School [Board]
[p]roperty for free under the claim that the
organization does not collect any funds for its services
1 The parties dispute whether MDCPS has an actual written policy on this
point.
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21-10619 Opinion of the Court 5
of aftercare. In fact, the organization . . . does charge
[fees] for its services and has been fraudulently filling
out paperwork submitted and accepted by the
[S]chool [B]oard indicating that it does not collect
funds and so gets to use the buildings for no money
at all.
The OIG investigated the claims, with Chabad’s
cooperation, and in June 2019 the OIG sent Chabad a 37-page draft
report of its investigation (the “Draft Report”). Chabad submitted
a response to the Draft Report in July 2019, and the OIG published
its Final Report in September 2019.
Chabad claims that both Reports were legally and factually
inaccurate, biased, misguided, and prejudicial. Namely, Chabad
takes issue with OIG’s accusations that (1) Chabad made
misrepresentations on its TUAs in order to gain free use of MDCPS
facilities; (2) Dr. Karp and his chief of staff pressured MDCPS staff
into approving Chabad’s applications and fee waivers; (3) Chabad
circumvented the School Board’s process for having an afterschool
program at a MDCPS facility; (4) Chabad improperly operated
CHAP without the required state licensing; and (5) it violated state
law by failing to do background checks on CHAP staff.
According to the amended complaint, MDCPS allowed
Chabad to continue using school facilities for free during the
pendency of the OIG’s investigation. During this time, Chabad
used the school board’s online reservation system to reserve space
at Waterways K-8 and Boone Elementary to operate CHAP for the
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6 Opinion of the Court 21-10619
2019-20 school year. Chabad alleged that “one day before the start
of the 2019-20 school year,” MDCPS Chief Financial Officer Ron
Steiger informed Chabad that, based on the Draft Report, it would
not be permitted to use MDCPS facilities for the 2019-20 school
year. Chabad objected to having its application denied on the basis
of a Draft Report and before it had the chance to submit a response.
Chabad further alleged that “during this same period,
Chabad Chayil’s counsel encountered [MDCPS Superintendent
Alberto Carvalho] at a charitable event and Carvalho assured him
that MDCPS would work out an accommodation with Chabad
Chayil.” However, once the OIG issued its Final Report, MDCPS
formally denied Chabad’s online space reservation and “[d]espite
numerous assurances by Carvalho that an accommodation for
CHAP would be worked out, MDCPS, through Carvalho and
Steiger[,] eventually told Chabad Chayil that it would never allow
Chabad Chayil to use MDCPS facilities because the OIG’s Final
Report found that Chabad Chayil made misrepresentations on its
TUAs.”
Based upon these allegations, Chabad brought the following
claims against MDCPS alone: (1) violation of the “Free Expression
Clause of the First Amendment” pursuant to 42 U.S.C. § 1983
(Count II); (2) violation of various provisions of the Florida
Constitution; and (3) violations of Florida state law. Chabad
brought the following claims against both MDCPS and OIG
pursuant to Section 1983: (1) violation of its First Amendment right
to freely exercise its religion (Count I); (2) violation of its equal
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21-10619 Opinion of the Court 7
protection rights under the Fourteenth Amendment (Count III);
and (3) deprivation of its right to procedural due process under the
Fourteenth Amendment (Count IV).2 Chabad also sought
declaratory and injunctive relief.
MDCPS and OIG filed separate motions to dismiss. The
district court dismissed all four of Chabad’s federal constitutional
claims against MDCPS because it had failed to allege facts
sufficiently demonstrating that any of the identified School Board
officials had final policymaking authority as required to support
liability under
Monell v. Department of Social Services, 436 U.S.
658 (1978). The district court dismissed the Section 1983 Free
Exercise claim against OIG for similar reasons, namely, for failure
to allege facts establishing an official OIG policy or custom that
would render OIG liable for the alleged constitutional violation.
The district court further dismissed Chabad’s Equal Protection and
Due Process claims on the merits.
The district court also denied Chabad leave to further
amend its complaint, finding Chabad’s request for leave to amend
“both procedurally deficient and lacking in substantive support.”
Finally, considering its dismissal of the federal claims, the district
court refused to exercise supplemental jurisdiction over the state-
law claims. Having dismissed the amended complaint in its
entirety, the district court closed the case. This appeal followed.
2 Chabad also brought a procedural due process claim based on the Florida
Constitution against both Defendants.
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II
We review the grant of a motion to dismiss under Rule
12(b)(6)
de novo, accepting the allegations in the complaint as true
and construing them in the light most favorable to the plaintiff.
Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir.
2004). We review a district court’s denial of leave to amend a
complaint for an abuse of discretion.
Coventry First, LLC v.
McCarty, 605 F.3d 865, 869 (11th Cir. 2010).
III
A. Claims against MDCPS
MDCPS may only be held liable where “the action that is
alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.”
Monell, 436 U.S. at 690. “[I]t
is when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury that the
government as an entity is responsible under [Section] 1983.”
Id. at
694.
A plaintiff can establish municipal liability under
Monell in
three ways: (1) identifying an official policy; (2) identifying an
unofficial custom or widespread practice that is so permanent and
well settled as to constitute a custom and usage with the force of
law; or (3) identifying a municipal official with final policymaking
authority whose decision violated the plaintiff’s constitutional
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21-10619 Opinion of the Court 9
rights.
See Cuesta v. Sch. Bd. of Miami-Dade Cnty., 285 F.3d 962,
966-68 (11th Cir. 2002). Chabad does not contend that MDCPS has
an official policy or a widespread practice of constitutional
violations, but rather that the single decision to prevent Chabad
from using MDCPS facilities violated Chabad’s constitutional
rights.
See Martinez v. City of Opa-Locka, 971 F.2d 708, 713 (11th
Cir. 1992) (“[A] single decision by an official policymaker can
establish the existence of an unconstitutional municipal policy.”).
We have set forth several guiding principles to evaluate whether
the decision of a single official is sufficient to give rise to municipal
liability, among them:
(1) Municipalities have section 1983 liability only for
acts officially sanctioned or ordered by the
municipality. (2) Only those municipal officials who
have final policymaking authority may subject the
municipality to section 1983 liability for their actions.
(3) The determination of whether or not a particular
official has final policymaking authority is governed
by state law, including valid local ordinances and
regulations. (4) The challenged action must have
been taken pursuant to a policy adopted by the official
or officials responsible for making policy in that
particular area of the city's business, as determined by
state law.
Id. (internal citations and quotation marks omitted).
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Here, Chabad alleges (1) that Superintendent Carvalho’s
“single . . . decision” to prevent it from using MDCPS’s facilities for
its after-school programs violated its constitutional rights and (2)
that Superintendent Carvalho had the requisite “final policymaking
authority” over school-facility usage.
See id. With respect to the
latter issue, Chabad’s complaint says only that Carvalho was
“responsible for the administration and management of MDCPS as
set out in Fla. Stat. § 1001.51 and [was] a final decision maker of
MDCPS.” Doc. 27 ¶ 14. Neither that conclusory assertion nor the
embedded statutory citation is sufficient to show that Carvalho had
final policymaking authority over school-facility usage.
The standard that governs the
Monell issue here is
straightforward and uncontroversial: “[T]his Court’s decisions
have consistently recognized and given effect to the principle that
a municipal official does not have final policymaking authority
over a particular subject matter when that official’s decisions are
subject to meaningful administrative review.”
Morro v. City of
Birmingham, 117 F.3d 508, 514 (11th Cir. 1997) (collecting cases).
The question, therefore, is whether, as Chabad asserts, Carvalho
had “unreviewable” authority over school property. Reply Br. at 5.
Chabad offers no support for that conclusory assertion, and we can
find none in the applicable Florida law. To the contrary, whatever
property-related policymaking authority a school superintendent
has is subject to the school board’s “meaningful” review—and,
accordingly, that it is not “final” for
Monell purposes.
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21-10619 Opinion of the Court 11
Nothing in either § 1001.51 or its neighboring provisions
gives local school superintendents “final policymaking authority”
with respect to school facilities. A review of the statutes confirms
what courts applying Florida law have long concluded: “By statute,
the school board is the policy-making body for the school district,
while the superintendent is the chief executive officer of the school
board and the chief administrator of the school district.”
Greene v.
School Bd. of Hamilton Cnty., 444 So.2d 500, 501 (Fla. Dist. Ct.
App. 1984) (emphasis added);
see also Fernandez v. School Bd. of
Miami-Dade Cnty., Fla., No. 15-21915-CIV, 2015 WL 9474616, at
*4 (S.D. Fla. Dec. 29, 2015) (explaining that “the actual
School
Board itself [is] the only entity
with final policymaking authority for the purposes of stating a
claim for relief under
Monell”); Fla. AGO 96-13 (Fla. A.G. Op.)
(emphasizing
Greene’s “policy-making body” language and
generally recognizing the school board’s preeminence in school-
district governance).
Chabad cites only Fla. Stat. § 1001.51(4), which provides
that, among a superintendent’s other powers, he or she acts for the
school board “as custodian of school property.” Despite Chabad’s
reliance on § 1001.51(4), the quoted language suggests that the
superintendent is effectively the school board’s agent, and that it is
the board—not the superintendent—that has ultimate (
i.e., “final”)
authority.
Cf.
Board of Pub. Instruction for Nassau Cnty. v.
Billings, 15 Fla. 686 (1876) (holding that where a superintendent
purchased land for school purposes without the school board’s
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12 Opinion of the Court 21-10619
consent and approval, the board had the authority to void the deal).
Moreover, and in just the same vein, § 1001.51 states that in
carrying out his duties, the superintendent “shall advise and
counsel with the district school board.” Fla. Stat. § 1001.51. That
language indicates, at the very minimum, that the superintendent
must discharge his responsibilities
in conjunction with the school
board—not alone.3
Nearly everything in Chapter 1001 of the Florida Statutes
undermines Chabad’s contention that Superintendent Carvalho
has
Monell-qualifying “final policymaking authority.” Take, for
instance, § 1001.33, which states that “[e]xcept as otherwise
provided by law, all public schools conducted within the district
shall be under the direction and control of the district school board
with the district superintendent as executive officer.” Fla. Stat. §
1001.33. Section 1001.33’s language—particularly its recognition
that the district is “under the direction and control” of the school
board—strongly suggests that the board is ultimately in charge of
school-district policy.
Working through Chapter 1001’s provisions, we come next
to § 1001.40. That section flatly states (among other things) that
3 The final sentence of § 1001.51’s preamble seems to confirm that
understanding. That provision, which states that “[i]t shall be presumed that
. . . the [superintendent’s] recommendations, nominations, and proposals . . .
[are] not contrary to the action taken by the district school board,” Fla. Stat. §
1001.51, at the very least implies that the board retains the authority to reject
the superintendent’s “recommendations.”
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“[t]he governing body of each school district shall be a district
school board.” Fla. Stat. § 1001.40.
Next up, § 1001.41 provides that the “school board, after
considering recommendations submitted by the district school
superintendent, shall exercise [an enumerated list of] general
powers.”
Id. § 1001.41. That language—referring to
“recommendations” that the superintendent makes to the board—
likewise indicates that it is in the board itself that final policymaking
authority ultimately resides. Section 1001.49 is similar, repeatedly
stating that the superintendent’s role is to make
“recommend[ations]” for the board’s consideration and approval.
See, e.g.,
id. at § 1001.49(2)–(5).
Moving on, §§ 1001.42 and 1001.43 are more specific—and
seemingly in ways that bear on the particular issue in this case. The
former says, among other things, that the school board “control[s]
school property and convey[s] the title to real and personal
property,” and the latter that the board can “adopt policies
providing for management of the physical campus and its environs
….”
Id. §§ 1001.42, 1001.43.
Based on the statutory scheme as a whole, it seems clear that
the school board is ultimately in charge of school-district policy and
that the superintendent acts, in effect, as the school board’s agent—
making recommendations to the board, executing policies that the
board adopts, etc. It also seems clear that while the superintendent
has day-to-day operational control—including “custodia[l]” control
of school property under § 1001.51(4)—the school board retains the
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14 Opinion of the Court 21-10619
ultimate authority to review and reverse any of the
superintendent’s decisions that it disapproves. Accordingly, it is the
school board—not the superintendent—that has the “final
policymaking authority” required under
Monell.
The district court determined that Chabad failed to allege
sufficient facts to allow the court to “infer that any of the
superintendent’s complained of actions fell within the contours” of
his final policymaking authority. We agree.4 Because Chabad failed
to sufficiently allege the elements of
Monell liability as to MDCPS,
we affirm the district court’s dismissal of Chabad’s Section 1983
claims against MDCPS.
B. Claims against the OIG
By way of reminder, Chabad asserted Section 1983 claims
against the OIG for (1) violating its right to free exercise of religion
(the “Free Exercise claim”); (2) violating its right to equal
protection when the OIG “singled it out for investigation” (the
“Equal Protection claim”); and (3) failing to provide Chabad with
procedural due process throughout the investigation (the “Due
Process claim”). The district court dismissed the Free Exercise
claim against OIG because Chabad failed to provide allegations
that any complained-of free-exercise violation resulted from an
official custom or policy of the OIG. It dismissed the Equal
4 For the reasons explained in its dismissal order, the district court was correct
to conclude that Chabad failed to sufficiently allege that any of the other
named MDCPS officials exercised final policymaking authority for MDCPS.
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21-10619 Opinion of the Court 15
Protection claim for failing to set forth facts establishing any valid
comparators whom the OIG treated differently than Chabad. The
district court dismissed Chabad’s Due Process claim because (1)
Chabad failed to sufficiently allege any concrete harm associated
with its alleged reputational injury, and (2) even if it did allege such
concrete harm, it failed to allege facts showing that the OIG was
responsible for that harm.
As an initial matter, the parties hotly dispute whether the
district court properly credited the contents of the OIG’s Draft
Report and Final Report, which Chabad attached to its amended
complaint. It is well settled that “[i]n ruling upon a motion to
dismiss, the district court may consider an extrinsic document if it
is (1) central to the plaintiff’s claim, and (2) its authenticity is not
challenged.”
Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs.
for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir.
2010). And “when the exhibits contradict the general and
conclusory allegations of the pleading, the exhibits govern.”
Griffin
Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007).
A careful review of the district court’s order, however,
reveals that, in ruling on Chabad’s claims against the OIG, it relied
on the Reports only to establish the fact that the OIG initiated its
investigation in response to an anonymous complaint about
Chabad and to reference the accusations contained in that
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16 Opinion of the Court 21-10619
anonymous complaint.5 The district court did not err in doing so
because Chabad does not dispute either fact and, indeed, cites the
substance of the anonymous complaint in its own pleading. We
now address each of Chabad’s Section 1983 claims against the OIG.
1. Free Exercise Claim
The OIG, like MDCPS, is an agency of a political subdivision
organized under the laws of the State of Florida. Chabad must
therefore establish that the OIG’s alleged constitutional violations
resulted from an official policy, a custom so well settled it has the
force of law, or the decision of an official with final policymaking
authority.
See Monell, 436 U.S. at 690-94;
Cuesta, 285 F.3d at 966,
968.
On appeal, Chabad specifically disclaims “using some
widespread policy standard to prove the OIG’s municipal liability”
but instead argues that “the institution of the OIG took
unconstitutional actions.” We agree with the district court that
Chabad failed to allege facts demonstrating that any particular
individual is a final policymaker for the OIG. That leaves the
question of whether Chabad has sufficiently alleged an official
5 True, the district court seemed to credit in its factual recitation certain other
facts from the Reports. But any facts beyond the existence and content of the
anonymous complaint did not impact the court’s analysis. Moreover, in
analyzing the claims on appeal, we have taken the allegations in the amended
complaint as true and credited the Reports only to the extent that the OIG
began its investigation of Chabad in 2017 in response to an anonymous
complaint and the contents of that anonymous complaint.
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policy or widespread custom of the OIG that would render it liable
for the alleged violations of Chabad’s right to freely exercise its
religion. The answer is no.
The amended complaint’s allegations about the OIG’s
investigation and Chabad’s religion are limited to the following:
Throughout its investigation, the OIG, in violation of
the Free Exercise Clause, exhibited bias against
Chabad Chayil based on its teaching of religion. The
OIG pressured numerous people that it was
interviewing to say that the fact that Chabad Chayil
was teaching Jewish religious topics . . . was violating
some policy, even though the OIG had no basis to
believe that anything Chabad Chayil did was against
any policy. . . .
The OIG had no basis to believe that the religious
orientation of CHAP violated any MDCPS policy.
Yet, the OIG repeatedly pushed MDCPS
administrators and others to say that there was
something wrong with Chabad Chayil teaching
religious topics in its CHAP program.
This is insufficient. The unspecified acts of unidentified OIG
investigators in this single case do not plausibly allege an official
policy of the OIG, or even a custom that rises to the force of law.
See Craig v. Floyd Cnty., 643 F.3d 1306, 1310 (11th Cir. 2011)
(explaining that if plaintiffs cannot plead facts demonstrating an
official policy, they must plead facts demonstrating a custom that
is so “longstanding and widespread . . . [it] is deemed authorized by
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18 Opinion of the Court 21-10619
the policymaking officials because they must have known about it
but failed to stop it”).
On appeal, Chabad now focuses on the Final Report as proof
of “OIG’s pervasive First Amendment violations.” We do not
consider arguments raised for the first time on appeal.
Access Now,
Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(noting our repeated holding that issues not raised before the
district court and raised for the first time on appeal “will not be
considered”). What’s more, Chabad never explains how the Final
Report violated its First Amendment rights nor even what those
violations are.
The district court properly dismissed the Free Exercise claim
against the OIG.
2. Equal Protection Claim
In its amended complaint, Chabad claims that OIG violated
the Equal Protection Clause because it investigated Chabad
“specifically because of its religious nature” and “[s]ingled [Chabad]
out for investigation, when numerous other organizations . . .
received fee waivers while charging fees.”
The Equal Protection Clause “is essentially a direction that
all persons similarly situated should be treated alike.”
City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). As
Chabad concedes, it proceeded here under a “class of one” equal
protection claim, a “less-developed strand of equal protection
jurisprudence.”
Griffin Indus., 496 F.3d at 1200. In a “class of one”
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21-10619 Opinion of the Court 19
claim, a plaintiff alleges not that it belongs to a protected class, but
that it is the only entity being treated differently from all other
similarly situated entities.
Vill. of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (per curiam). In order to prevail, a plaintiff must
show that it “has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment.”
PBT Real Est., LLC v. Town of Palm
Beach, 988 F.3d 1274, 1285 (11th Cir. 2021).
We apply the similarly situated requirement “with rigor.”
Griffin Indus., 496 F.3d at 1207. The entities being compared “must
be
prima facie identical in all relevant respects.”
PBT Real Est., 988
F.3d at 1285 (emphasis omitted). A plaintiff must ultimately show
that it and any comparators are “similarly situated ‘in light of all the
factors that would be relevant to an objectively reasonable
governmental decisionmaker.’”
Douglas Asphalt Co. v. Qore, Inc.,
541 F.3d 1269, 1275 (11th Cir. 2008) (quoting
Griffin Indus., 496
F.3d at 1207);
see also Griffin Indus., 496 F.3d at 1207
(“Accordingly, when plaintiffs in ‘class of one’ cases challenge the
outcome of complex, multi-factored government decisionmaking
processes, similarly situated entities must be very similar indeed.”
(internal quotation marks and citation omitted)).6
6 Chabad argues for the first time on appeal that the complexity of the
government decisionmaking process should have a direct bearing on the
similarity showing. Chabad does not provide any legal authority for its
argument and, in any event, we do not consider issues raised for the first time
on appeal.
See Access Now, 385 F.3d at 1331.
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20 Opinion of the Court 21-10619
In analyzing Chabad’s equal protection allegations, the
district court identified a key problem—the OIG’s investigation
into Chabad was instigated by an anonymous complaint alleging
that Chabad was improperly receiving fee waivers from MDCPS.
Chabad fails to allege that any of the proposed comparators were
also the subject of such a complaint. This fact alone clearly
distinguishes Chabad from the other entities that allegedly
collected monies while also receiving fee waivers from MDCPS.
See Lewis v. City of Union City, 918 F.3d 1213, 1227 (11th Cir.
2019) (“[A] plaintiff and her comparators must be sufficiently
similar, in an objective sense, that they cannot reasonably be
distinguished.” (citation and internal quotation marks omitted));
Griffin Indus., 496 F.3d at 1203 (explaining that in evaluating “class
of one” claims, courts must consider “the full variety of factors that
an objectively reasonable governmental decisionmaker would
have found relevant in making the challenged decision”).
Thus, Chabad did not demonstrate that its comparators
were similarly situated in all relevant respects.
See PBT Real Est.,
988 F.3d at 1285. The district court correctly dismissed the Equal
Protection claim against the OIG.
3. Due Process Claim
Chabad alleged in its amended complaint that the OIG
thwarted its “liberty interest in its reputation by failing to provide
Chabad Chayil with due process throughout its investigation.”
According to Chabad, the OIG refused to provide Chabad with an
adequate opportunity to respond to the allegations in the Draft
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Report and knowingly included false and defamatory statements in
the Final Report that damaged Chabad’s reputation.
The Supreme Court has held that injury to reputation, by
itself, does not constitute the deprivation of a liberty or property
interest protected under the Fourteenth Amendment.
Paul v.
Davis, 424 U.S. 693, 701–02, 712 (1976). The Court in
Paul
explained that, to invoke the procedural protections of the Due
Process Clause, a plaintiff would need to establish more than a
mere defamation claim.
Id. at 706;
see also Siegert v. Gilley, 500
U.S. 226, 233 (1991) (“Defamation, by itself, is a tort actionable
under the laws of most States, but not a constitutional
deprivation.”).
Thus, to establish a valid claim for the deprivation of a
liberty interest based on reputational harm, a plaintiff must satisfy
what has come to be known as the “stigma-plus” test.
Behrens v.
Regier, 422 F.3d 1255, 1259 (11th Cir. 2005). Under this test, “a
plaintiff claiming a deprivation based on defamation by the
government must establish the fact of the defamation ‘plus’ the
violation of some more tangible interest before the plaintiff is
entitled to invoke the procedural protections of
the Due Process Clause.”
Cannon v. City of West Palm Beach, 250
F.3d 1299, 1302 (11th Cir. 2001) (citing
Paul, 424 U.S. at 701–02).
Therefore, to establish “a liberty interest sufficient to implicate the
[F]ourteenth [A]mendment safeguards, the individual must be not
only stigmatized but also stigmatized in connection with a denial
of a right or status previously recognized under state law.”
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22 Opinion of the Court 21-10619
Behrens, 422 F.3d at 1260;
see also Cypress Ins. Co. v. Clark, 144
F.3d 1435, 1436 (11th Cir. 1998) (“This rule, labeled the ‘stigma-
plus’ standard, requires a plaintiff to show that the government
official’s conduct deprived the plaintiff of a previously recognized
property or liberty interest in addition to damaging the plaintiff’s
reputation.”). Actionable deprivation of a property interest
requires “a legitimate claim of entitlement to it.”
Bd. of Regents v.
Roth, 408 U.S. 564, 577 (1972). An “abstract need or desire” for, or
a “unilateral expectation” of, a property interest is not enough.
Id.
That legal entitlement must be a “right or status [that] has been
previously recognized and protected under state law.”
Behrens,
422 F.3d at 1261.
None of Chabad’s arguments in support of its Due Process
claim hold water. Chabad first points to
Marrero v. City of Hialeah,
625 F.2d 499 (5th Cir. 1980), and a line of cases emanating from
Marrero holding that allegations of harm to business reputation
alone can sometimes rise to the level of a constitutional
deprivation. Our Court, however, has expressly disclaimed that
line of case law in light of
Siegert v. Gilley, 500 U.S. 226 (1991).
See
Cypress Ins. Co., 144 F.3d at 1438 (“The Supreme Court’s message
in
Siegert is clear and unmistakable: Section 1983 did not make
every tort committed by a state official a violation of constitutional
rights. In particular, damages to a plaintiff’s business reputation are
only recoverable in a section 1983 action if those damages were
incurred as a result of government action significantly altering the
plaintiff’s constitutionally recognized legal rights.”).
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21-10619 Opinion of the Court 23
Changing tactics, Chabad also argues that it had two
protected property interests: (1) an informal agreement with
MDCPS that Chabad would be allowed to use school facilities for
CHAP until the conclusion of the OIG investigation; and (2) the
right to have Chabad’s applications considered by MDCPS. Neither
provide Chabad a property right recognized under state law. The
record reflects that, at the bottom of the TUA Chabad filled out
each year, was language advising that “[b]efore this agreement
becomes official it must bear the designated signatures” of both the
principal of the school and the superintendent. And in Florida,
contractual rights with a government agency require a written
agreement that has been approved by the governmental entity.
See
Pan–Am Tobacco Corp. v. Dep’t of Corrs., 471 So. 2d 4, 5–6 (Fla.
1984) (recognizing an exception to sovereign immunity when state
entities enter into contracts but cautioning that this waiver of
immunity was “applicable only to suits on express, written
contracts into which the state agency has statutory authority to
enter”);
City of Orlando v. W. Orange Country Club, Inc., 9 So. 3d
1268, 1272–73 (Fla. 5th DCA 2009) (noting that waiver of sovereign
immunity on contract claims would logically only apply if the
written contract is “properly approved by or on behalf of the
governmental entity sought to be held liable”). It is undisputed that
Chabad does not have a signed, written agreement to use MDCPS
facilities for the 2019-2020 school year or for any year thereafter.
Nor has Chabad pointed to any legal authority providing that it has
a “right” to have a local school board consider its applications.
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Thus, Chabad has not demonstrated “stigma plus” a legal
entitlement.
Moreover, we agree with the district court that even if
Chabad had properly demonstrated stigma plus another concrete
harm, it cannot show that the OIG caused that harm. To impose
liability under Section 1983, the government entity’s actions must
be the “moving force” behind the deprivation of a constitutional
right.
Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,
403–04 (1997);
see also City of Canton v. Harris, 489 U.S. 378, 385
(1989) (“[O]ur first inquiry in any case alleging municipal liability
under [Section] 1983 is the question whether there is a direct causal
link between a municipal policy or custom and the alleged
constitutional deprivation.”). A defendant’s actions cannot be the
moving force behind a violation where the actions of another,
independent decisionmaker breaks the chain of causation.
Caruth
v. Bentley, 942 F.3d 1047, 1056 (11th Cir. 2019).
Here, the OIG’s role is to conduct investigations and issue
reports.7 The OIG does not have the authority to refuse any group
permission to use school board property–that power lies with
MDCPS. Thus, even if the OIG did act in accordance with some
7 The OIG provides inspector general services to MDCPS pursuant to an
Interlocal Agreement between Miami-Dade County and the county’s School
Board. Pursuant to that agreement, the OIG possesses the authority to
“investigate [MDCPS] affairs, including the power to review past, present, and
proposed programs, accounts, records, contracts and transactions.”
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official policy or custom, that policy or custom did not cause
Chabad’s harm.
The district court properly dismissed Chabad’s Due Process
claim.
C. Leave to Amend
Here, Chabad raised its request to file a second amended
complaint at the end of its responses to the Defendants’ motions to
dismiss. This is procedurally improper. “[W]here a request for
leave to file an amended complaint simply is imbedded within an
opposition memorandum, the issue has not been raised properly.”
Newton v. Duke Energy Fla., LLC, 895 F.3d 1270, 1277 (11th Cir.
2018);
see also Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999)
(explaining that a plaintiff wishing to amend its complaint must file
a separate motion for leave to amend and either set forth the
substance of the proposed amendment or attach a copy of the
amended pleading). The district court was well within its discretion
to deny Chabad’s perfunctory request to further amend its
complaint.
IV
For the reasons stated, we conclude that the district court
properly dismissed all of Chabad’s Section 1983 claims against the
MDCPS and OIG, and we affirm the dismissal of those claims
without leave to amend.
AFFIRMED.
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