William O. Fuller, et al v. Joe Carollo

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11746
Non-Argument Calendar
____________________
WILLIAM O. FULLER,
MARTIN A. PINILLA, II,
Plaintiffs-Appellees,
versus
JOE CAROLLO,
Defendant-Appellant,
JOHN DOES 1-10, et al.,
Defendants.
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2 Opinion of the Court 21-11746
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cv-24190-RS
____________________
Before W ILLIAM PRYOR , Chief Judge, WILSON, and ANDERSON, Cir-
cuit Judges.
PER CURIAM:
Joe Carollo, a City Commissioner, appeals a second time a
denial of immunity from a complaint filed by William O. Fuller and
Martin A. Pinilla, businessmen from the Little Havana neighbor-
hood of Miami, who allege that Carollo repeatedly harassed them
in retaliation for their political support of his election opponent in
violation of the First Amendment.
See 42 U.S.C. § 1983. After brief-
ing and oral argument, we dismissed Carollo’s first appeal for lack
of jurisdiction because it challenged a nonfinal order that granted
the businessmen leave to amend their complaint.
Fuller v. Carollo,
977 F.3d 1012 (11th Cir. 2020). Fuller and Pinilla amended their
complaint, and the district court granted a partial dismissal based
on legislative immunity and denied a dismissal based on qualified
immunity. We affirm.
I. BACKGROUND
At this stage, we accept the allegations in the amended com-
plaint as true and construe them in the light most favorable to the
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21-11746 Opinion of the Court 3
plaintiffs.
See Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir.
2010). We need not rehash all the details of the proceedings that
led to their first appeal. We limit our review to the allegations in
the amended complaint that relate to Carollo’s arguments for leg-
islative and qualified immunity.
In 2017, Carollo was a candidate for city commissioner for
the district 3 that includes Little Havana. Before the general elec-
tion, he sought Fuller’s political support and the two men appeared
to have a good relationship. Carollo advanced to a runoff election
against Alfie Leon.
After early voting for the runoff began, Leon held political
rallies at a property Fuller owned that was adjacent to an early vot-
ing center. Carollo’s campaign chief of staff, Steve Miro, noticed
Pinilla at the rallies and notified Carollo. On the last day of early
voting, Miro saw Pinilla at a rally, called Fuller, and demanded that
he shut down the event. Carollo and Miro then used contacts in
city government to shut down the rally. Carollo defeated Leon in
the runoff election in November.
Less than a week later, at Carollo’s direction, dozens of po-
lice, fire, building, and other officers raided Sanguich de Miami, a
restaurant where Fuller and Pinilla were investors and landlords.
Weeks later, Carollo introduced and voted for Ordinance 13733,
which ended the temporary-use permits used to operate Sanguich.
When Sanguich attempted to reopen, city officials twice shut it
down acting on direct orders from Carollo and his associates. Car-
ollo also targeted Sanguich at the Gay 8 Festival where it operated
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4 Opinion of the Court 21-11746
as a tent vendor. Carollo and Miro voiced concerns about Sanguich
selling contaminated food to a city fire inspector, who then per-
formed an intrusive surprise inspection. Carollo did not target any
other vendor at the festival. Sanguich eventually relocated to a
property not owned by Fuller and Pinilla and resumed operations
without interference.
A month after the runoff election, Carollo also attempted to
shut down Fuller and Pinilla’s office Christmas party. Carollo had
Maria Lugo, a campaign advisor and former city employee, de-
mand that the director of code enforcement shut down the event
for lacking a special events permit. When an enforcement officer
reported that the event did not violate the code, her supervisor (a
friend of Lugo) instructed her to remain outside the event until it
ended. Carollo also complained to the assistant city manager, who
instructed the director to attend the party in person. The director
later confirmed to Fuller that Carollo’s actions were politically mo-
tivated.
Three months after the runoff, Carollo shut down the one-
year anniversary party of Union Beer Store after visiting the prop-
erty with several police officers and code enforcement officer.
Fuller and Pinilla were landlords for and partners in Union Beer.
That same month, Carollo also started harassing the Ball &
Chain nightclub, which Fuller and two friends owned. Carollo and
several associates visited the club’s valet parking lot and photo-
graphed cars on the pretense of performing an “official investiga-
tion” of the operation. Later, Carollo visited residents of a nearby
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21-11746 Opinion of the Court 5
building to solicit noise complaints against the club. Carollo also
conducted a “park-and-walk” with city employees, including the
acting director of code enforcement, to meet with a resident Car-
ollo had prepped to make a noise complaint against the club. Car-
ollo arranged the park-and-walk without the knowledge of the city
manager. Carollo later texted a parking complaint to the city man-
ager, who in turn directed three code officers and a police officer
to force club employees to move their cars from the club’s parking
lot. The general manager of the club later discovered Carollo and
a member of the code enforcement board behind the club attempt-
ing to solicit more noise complaints from neighbors.
Carollo also used his official authority to harass Fuller in
other ways. For example, Carollo issued orders shutting down
Domino Plaza, the customary site of the monthly Viernes Cul-
turales festival hosted by an organization led by Fuller. And, after
Carollo raised concerns about Fuller-owned properties during a
meeting of the city commission, the city attorney sent an email to
local administrators requesting a review of records of and the in-
spection of properties discussed at the meeting, most of which
were owned by Fuller or his associates or were related to Fuller’s
businesses.
Fuller and Pinilla filed a complaint in the district court alleg-
ing that Carollo retaliated against them in violation of the First
Amendment.
See 42 U.S.C. § 1983. Carollo moved to dismiss based
on qualified immunity and legislative immunity. A magistrate
judge issued a report and recommendation that the district court
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grant Carollo’s motion in part and deny it in part. The district court
adopted that report and recommendation. And it granted Fuller
and Pinilla leave to amend their complaint consistent with the re-
port and recommendation. We dismissed Carollo’s appeal of that
order for lack of jurisdiction.
Fuller, 977 F.3d 1012
After remand, Fuller and Pinilla filed a second amended
complaint against Carollo. The amended complaint repeated many
of the allegations made in the amended complaint.
Carollo moved to dismiss the amended complaint, which
the district court granted in part and denied in part. Fed. R. Civ. P.
12(b)(6). The district court ruled that Carollo enjoyed legislative
immunity as to “the passage of Ordinance 13733,” but that he
lacked legislative or qualified immunity for the “multiple actions
directed solely at [Fuller and Pinilla] or directed at others who did
business with [them]” and where his conduct “involve[d] code en-
forcement, something the Eleventh Circuit has stated is adminis-
trative, not legislative.”
II. STANDARD OF REVIEW
We review
de novo the denial of a motion to dismiss based
on immunity from suit.
See Crymes v. DeKalb Cty., Ga., 923 F.2d
1482, 1485 (11th Cir. 1991) (legislative immunity);
Keating, 598
F.3d at 762 (qualified immunity).
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III. DISCUSSION
We divide our discussion in two parts. First, we discuss
Carollo’s argument for legislative immunity. Second, we discuss
Carollo’s argument for qualified immunity.
A. The District Court Did Not Err by Partially Denying Carollo
Legislative Immunity.
“Absolute legislative immunity extends only to actions
taken within the sphere of legitimate legislative activity.”
Brown
v. Crawford Cty., Ga., 960 F.2d 1002, 1011 (11th Cir. 1992) (inter-
nal quotation marks omitted). So, “[i]t is the official function that
determines the degree of immunity required, not the status of the
acting officer.”
Espanola Way Corp. v. Meyerson, 690 F.2d 827,
829 (11th Cir. 1982) (alteration adopted) (quoting
Marrero v. City
of Hialeah, 625 F.2d 499, 508 (5th Cir. 1980)). To enjoy absolute
immunity, the legislator must engage in “[a] legislative act [that]
involves policy-making rather than [the] mere administrative ap-
plication of existing policies.”
Crymes, 923 F.2d at 1485. The act
of “rulemaking . . . [is] legislative.”
Id. But the enforcement of
laws against “specific individuals, rather than the general popula-
tion, . . . [are] more apt to be administrative” and excluded from
protection under the doctrine of legislative immunity.
Id.
The district court did not err in partially denying Carollo’s
argument for legislative immunity. Fuller and Pinilla’s amended
complaint alleges that Carollo exceeded the bounds of his legisla-
tive responsibilities by repeatedly harassing their businesses.
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Carollo’s alleged enforcement actions were not legislative func-
tions for which he was entitled to absolute immunity. Carollo ar-
gues that legislative immunity applies to “matters arising out of
his Commission votes,” but the district court ruled that he was
immune from suit for actions related to the passage of Ordinance
13733. Carollo also argues that he is immune from suit for “intro-
ducing legislation to abolish the use of special masters,” but Fuller
and Pinilla deleted that allegation from their amended complaint.
Carollo identifies no legislative function he allegedly performed
for which the district court denied him absolute immunity.
B. Carollo’s Argument for Qualified Immunity Fails.
Carollo’s argument for qualified immunity also fails. Car-
ollo argues that the district court erred in determining that his ac-
tions fell outside “the allowable duties and functions of a City leg-
islative policymaker.” But the district court
agreed that Carollo
was acting in his discretionary capacity as a city commissioner.
Carollo also argues that an investigative report attached to the
complaint “rendered the[] First Amendment retaliation claims im-
plausible,” but the district court declined to consider the hearsay
in that report.
See Jones v. UPS Ground Freight, 683 F.3d 1283,
1294 (11th Cir. 2012). Carollo does not challenge that reasoning.
And Carollo identifies no legal error in the ruling that the com-
plaint against him alleges that he violated settled law prohibiting
officials from retaliating against constituents who engage in politi-
cal activities protected by the First Amendment.
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IV. CONCLUSION
We AFFIRM the partial denial of Carollo’s motion to dis-
miss.
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