Doral 10, LLC, et al v. City of Doral, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13528
____________________
DORAL 10, LLC,
LIZBETH ARENCIBIA,
RENE ARENCIBIA,
Plaintiffs-Appellants,
versus
CITY OF DORAL,
a Florida Municipal Corporation,
EE&G ENVIRONMENTAL SERVICES, LLC,
BCC ENGINEERING, LLC,
JOSE MARIO ALVAREZ, et al.,
Defendants-Appellees,
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2 Opinion of the Court 20-13528
JVA ENGINEERING CONTRACTOR, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-24830-JLK
____________________
Before WILSON , L UCK , and L AGOA, Circuit Judges.
PER CURIAM:
Plaintiffs-Appellants Doral 10, LLC, Lizbeth Arencibia, and
Rene Arencibia (collectively, Doral 10) contracted with the City of
Doral (the City) to buy Doral 10’s property for use in an upcoming
roadway project. Before closing on the property, the City and the
city managers, through various contractors, illicitly used Doral 10’s
property and caused a significant amount of damage to the prop-
erty. Doral 10 sued the City, the city managers, and various con-
tractors (collectively, the defendants) under 42 U.S.C. § 1983 for vi-
olating Doral 10’s Fourth and Fifth Amendment rights. Relevant
to this appeal, the district court dismissed Doral 10’s Amended
Complaint, stating that Doral 10 failed to allege municipal liability
against the City.
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20-13528 Opinion of the Court 3
After careful review and with the benefit of oral argument,
we find that, at the motion to dismiss stage, Doral 10 has plausibly
alleged that the city managers acted as final policymakers in au-
thorizing the use of Doral 10’s property. Thus, we reverse the dis-
trict court’s dismissal of Doral 10’s § 1983 claims against the City.
I. BACKGROUND
Accepting the well-pleaded factual allegations in Doral 10’s
Amended Complaint as true, as we must, Doral 10 alleges the fol-
lowing. See MacPhee v. MiMedx Grp., Inc., 73 F.4th 1220, 1228 (11th
Cir. 2023). On January 9, 2019, Doral 10 and the City signed a Let-
ter of Intent for the City to buy Doral 10’s property for $10,750,000.
Doral 10’s property abutted a roadway slated for an improvement
project (Improvement Project). The City awarded JVA Engineer-
ing Contractor, Inc., the contract to complete the Improvement
Project. The City entered an agreement with BCC Engineering,
LLC, to provide engineering services.
The City “unlawfully and without consent or authorization
knowingly seized and utilized” Doral 10’s property before the par-
ties closed on the property. Relying on its inchoate agreement to
buy Doral 10’s property, the City “falsely and knowingly repre-
sented” to the various contractors that “the City had secured Doral
10’s consent or authorization to utilize” Doral 10’s property for the
Improvement Project, “when it had not.”
During the five-month-long occupation of the property, the
City, “in concert and together” with two different city managers,
Edward Rojas and Albert Childress, and various contractors,
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4 Opinion of the Court 20-13528
knowingly seized and utilized Doral 10’s property as a staging area
for the Improvement Project. During that occupation, the contrac-
tors took clean fill material from Doral 10’s property and mixed it
with contaminated soil excavated from the Improvement Project.
As a result, the contractors placed a large pile of contaminated soil
on Doral 10’s property, causing damage. Additionally, the contrac-
tors used the clean fill material from Doral 10’s property to create
embankments for the Improvement Project. Doral 10 knew noth-
ing about this occupation, nor did it approve or authorize the use
of its property. “The City took active efforts to prevent [Doral 10]
from learning of the entry onto, use of, and contamination of”
Doral 10’s property.
While the occupation was underway, the defendants, in-
cluding Rojas and Childress, circulated reports that “contained de-
tailed pictures of work done” on the Improvement Project and the
staging area set up on Doral 10’s property. The defendants also
“held bi-weekly progress meetings.” Doral 10 alleged that Rojas
and Edwards “at all times acted under color of state law as the
City’s final policymaker[s],” and that they “personally participated
in the described conduct” and were “responsible for the damages
to [Doral 10’s] property.” Thus, throughout the occupation, the
city manager—Rojas initially, and then Childress—were involved.
Indeed, the city managers negotiated and “agreed to the essential
contract terms” of the Letter of Intent with Doral 10. The City’s
elected officials later ratified the agreement previously negotiated
by the city managers. And Doral’s “City Manager, City staff, and
other responsible persons then unilaterally and without any due
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20-13528 Opinion of the Court 5
process or permission or consent from” Doral 10 allowed for the
illicit occupation of Doral 10’s property by various private contrac-
tors.
As a result of the various contractors’ actions, which were
taken “with the City’s consent,” the City notified Doral 10 that its
property “required environmental remediation at a minimum cost
of $2,800,000.00 to excavate three feet of surface material” found
throughout Doral 10’s property. The City used EE&G Environ-
mental Services, LLC, as a construction remediation company for
the property. According to Doral 10, the City used the remediation
cost to affect the underlying sale, which, at the time of this appeal,
had not been effectuated by the parties. In total, at least 800 feet of
soil on Doral 10’s property was “disturbed, devalued, contami-
nated, and affected by the actions” of the City, the city managers,
and the various contractors.
Doral 10 alleged § 1983 claims against the City, two city
managers, and private contractors for violating its Fifth Amend-
ment rights to due process and just compensation, and for violating
its Fourth Amendment right to be free from unreasonable searches
and seizures. As to its claims against the City, Doral 10 alleged that
“[t]he City’s decisions were authorized and/or most certainly con-
doned and approved by the decisions of a government’s lawmakers
such that they constituted the acts of its policymaking officials” and
constituted “practices that [were] so persistent and widespread as
to practically have [had] the force of law.” Doral 10 also asserted
that “the City failed to correct the constitutionally offensive actions
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6 Opinion of the Court 20-13528
of its employees and authorized agents, such that the City’s actions
rose to the level of a custom or policy because the City acted with
deliberate indifference towards the misconduct of its authorized
agents.” Moreover, Doral 10 alleged that the two relevant city
managers, Rojas and Childress, were the “City’s final policy-
maker[s]” with respect to these allegations, “were aware and either
personally authorized or ratified the alleged constitutional law violations
by the City, its employees, and the private [contractor] defendants.” (Em-
phasis added).
The defendants moved separately to dismiss the claims as-
serted against them. The district court granted the defendants’ mo-
tions to dismiss. Relevant to this appeal, the district court found
that Doral 10 failed to identify an official custom or practice by the
City that supported a theory of municipal liability under § 1983.
The district court also found that Doral 10 failed to show that the
contractors (including JVA) were state actors subject to liability un-
der § 1983.
Doral 10 timely appealed the dismissal of its claims against
the City and JVA. Before oral argument, we granted Doral 10’s
motion to dismiss its appeal against JVA.1
1 After we dismissed Doral 10’s claims against JVA from this appeal, JVA
moved for its attorney’s fees. JVA’s Motion for Appellate Attorney’s Fees is
TRANSFERRED to the district court for its consideration of whether JVA is
entitled to appellate attorney’s fees and the amount of appellate attorney’s fees
to which JVA is entitled, if any. See 11th Cir. R. 39-2(d).
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20-13528 Opinion of the Court 7
II. STANDARD OF REVIEW
“We review de novo the district court’s grant of a motion to
dismiss . . . for failure to state a claim, accepting the factual allega-
tions in the complaint as true and construing them in the light most
favorable to the plaintiff.” Glover v. Liggett Grp., Inc., 459 F.3d 1304,
1308 (11th Cir. 2006) (per curiam). Although the complaint need
not include detailed factual allegations, it must set forth “more than
labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Still, “[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
III. ANALYSIS
Section 1983 provides a cause of action by private citizens
against a “person” acting under color of state law for violating their
constitutional rights and other federal laws. 42 U.S.C. § 1983. A
municipality is a “person” within the meaning of the statute. Mo-
nell v. Dep’t of Soc. Servs., 436 U.S. 658, 688–89 (1978).
“It is well established that a municipality may be held liable
under § 1983 only when the deprivation at issue was undertaken
pursuant to city ‘custom’ or ‘policy,’ and not simply on the basis of
respondeat superior.” Brown v. City of Fort Lauderdale, 923 F.2d 1474,
1479 (11th Cir. 1991). A plaintiff “has two methods by which to
establish a [city’s] policy: identify either (1) an officially promul-
gated [city] policy or (2) an unofficial custom or practice of the
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8 Opinion of the Court 20-13528
[city] shown through the repeated acts of a final policymaker for
the [city].” Grech v. Clayton Cnty., 335 F.3d 1326, 1329 (11th Cir.
2003) (en banc).
Under the first method, “a single incident of unconstitu-
tional activity” can establish municipal liability if the incident “was
caused by an existing, unconstitutional municipal policy, which
policy can be attributed to a municipal policymaker.” City of Okla-
homa City v. Tuttle, 471 U.S. 808, 823–24 (1985). Under the second
method, the plaintiff must show the custom is “a longstanding and
widespread practice [that] is deemed authorized by the policymak-
ing officials because they must have known about it but failed to
stop it.” Brown, 923 F.2d at 1481. For this method, “random acts
or isolated incidents are insufficient to establish a custom or pol-
icy.” Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986).
Under both methods, the plaintiff must show the policy-
maker either ratified the unconstitutional conduct, Hoefling v. City
of Miami, 811 F.3d 1271, 1279–80 (11th Cir. 2016), or delegated to a
subordinate official whose “discretionary decisions are not con-
strained by official policies and are not subject to review,” Mandel
v. Doe, 888 F.2d 783, 792 (11th Cir. 1989); see also Holloman ex rel.
Holloman v. Harland, 370 F.3d 1252, 1291 (11th Cir. 2004) (“A mu-
nicipal governing body may be held liable for acts or policies of in-
dividuals to whom it delegated final decisionmaking authority in a
particular area.”). We have also noted that the fact that someone
“acted as a final decision maker in [one] context does not mean that
he always acts as such.” Holloman, 370 F.3d at 1292–93. Indeed, the
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20-13528 Opinion of the Court 9
“theme reiterated through much of our caselaw” is that “in as-
sessing whether a governmental decision maker is a final policy
maker, we look to whether there is an actual ‘opportunity’ for
‘meaningful’ review” of the decisionmaker’s actions in the relevant
context. Id. at 1292 (quoting Oladeinde v. City of Birmingham, 230
F.3d 1275, 1295 (11th Cir. 2000)).
While we agree that Doral 10’s Amended Complaint does
not stake out a plausible claim for the second method, our agree-
ment ends there. We conclude that Doral 10 has made sufficient
allegations for the first method to satisfy the pleading requirements
at the motion to dismiss stage. Specifically, when the City entered
and began using Doral 10’s property without its authorization or
consent in January 2019, the City seized Doral 10’s property—a
“single incident of unconstitutional activity.” Tuttle, 471 U.S. at
823.
Turning to who was the final policymaker, Doral 10 has
pleaded sufficient allegations, that taken as true, could establish
that the city managers were the final policymakers when it came
to the management of the contract for the Improvement Project.2
2 Counsel for Doral 10 confirmed as much at oral argument when counsel
stated:
The City Council is exactly the final decisionmaker in the de-
cision whether or not to issue the contracts for [the City].
Once the contract is issued, the management of the contract,
within the terms of it, is completely up to the city manager. . . .
Once the contract is executed, meaning signed, the city man-
ager is the person who manages the contract. We are talking
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10 Opinion of the Court 20-13528
In reviewing the complaint—and taking its allegations as true, as
we must—Doral 10 alleges that Rojas was the city manager until
Childress replaced him around February 2019. Doral 10 also al-
leges that Rojas and Childress, as the city managers, acted as final
policymakers with regard to the Improvement Project. For sup-
port, Doral 10 alleges that Rojas and Childress authorized and per-
sonally participated in the at-issue conduct alleged in the Amended
Complaint. Doral 10 further alleges that, at a minimum, Rojas and
Childress maintained some form of delegated authority from the
City to effectuate the implementation of the Improvement Project,
given their day-to-day involvement in managing it and their ability
to authorize private contractors.
Next, “[t]o determine if someone is a final policy maker, we
look not only to ‘state and local positive law,’ but also ‘custom and
usage having the force of law.’” Holloman, 370 F.3d at 1292 (quot-
ing McMillian v. Johnson, 88 F.3d 1573, 1577 (11th Cir. 1996)). The
City’s charter vests the City Council “with all legislative powers of
the City.” Doral Municipal Charter, art. II, § 2.01. But the charter
about the management of the contract, not the issuance of the
contract, here. The city manager, once a contract is issued and
approved by the [City Council] is the decisionmaker, in terms
of how to manage that [contract]. . . . We have alleged . . . that
[the city manager] is the decisionmaker. . . . There is certain
plausibility in alleging that [the city manager] is the deci-
sionmaker, in showing that, once the contract has been is-
sued, . . . it is up to the [city manager] to manage [the con-
tract]. . . . [T]he purpose of a city manager is to run the day-
to-day operation of the city.
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20-13528 Opinion of the Court 11
also gives the city manager the power to “[e]xecute contracts,
deeds and other documents on behalf of the City as authorized by
the Council” and the power to “[p]erform such other duties as are
specified in th[e] Charter or as may be required by the Council.”
Id., art. III, § 3.04(9), (11). Further, as applicable to the Improve-
ment Project, the City Council awarded the relevant private con-
tractor, JVA, the Improvement Project contract in Resolution No.
19-26 but also authorized the city manager to “execute the con-
struction contract” and to “take such further action as may be nec-
essary to implement the purpose and the provisions of th[e] Reso-
lution.” Id. §§ 2–4. Viewing these provisions in the light most fa-
vorable to Doral 10 and its pleaded allegations, it is plausible that
the City vested the city managers with final policymaking author-
ity when it came to decisions about the management of the Im-
provement Project, including the decision to authorize the use of
Doral 10’s property as a staging area for the project.
Summary judgment and evidence produced through discov-
ery might very well prove the dissent correct about whether the
City Council could review the respective city managers’ actions in
this project. But given the intimate involvement of the city man-
agers leading up to, and during the occupation of the property, and
given Doral 10’s allegation that they wielded final policymaking au-
thority, Doral 10 has sufficiently pleaded enough facts to survive
the City’s motion to dismiss. See Brown, 923 F.2d at 1480
(“Whether a particular official has final policymaking authority is a
question of state law . . . . Our task, however, is not to determine
who, in fact, wields final policymaking authority but only to
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12 Opinion of the Court 20-13528
consider whether plaintiff has alleged sufficient facts to withstand
the city’s motion to dismiss. . . . The district court on remand will
need to consider all available evidence of policymaking authority
before deciding the issue of municipal liability.”); see also Hoefling,
811 F.3d at 1280 (“We therefore believe that identifying and prov-
ing that a final policymaker acted on behalf of a municipality is ‘an
evidentiary standard, and not a pleading requirement.’” (quoting
Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002))).
IV. CONCLUSION
Accordingly, we reverse the district court’s dismissal of
Doral 10’s § 1983 claims against the City and remand for further
proceedings.
REVERSED AND REMANDED.
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20-13528 L UCK , J., Dissenting 1
L UCK , Circuit Judge, Dissenting:
Doral 10, LLC alleges that the City of Doral unreasonably
seized its property, in violation of the Fourth Amendment, and
took its property without just compensation, in violation of the
Fifth Amendment, when the City Manager used Doral 10’s real
property in a roadway improvement project without obtaining
Doral 10’s permission or compensating Doral 10. Doral 10 con-
tends that the City is liable under Monell v. Department of Social Ser-
vices, 436 U.S. 658 (1978) because the City Manager was the final
policymaker in the relevant area of the City’s affairs. Because Doral
10 is wrong about the City’s final policymaker—and thus does not
make necessary allegations against the actual final policymaker—I
would affirm the dismissal of the claims against the City.
The identity of the final policymaker is a question of state
law. See Brown v. City of Ft. Lauderdale, 923 F.2d 1474, 1480 (11th
Cir. 1991). According to the City’s charter, the City Council
wielded “all legislative powers of the City,” Doral Municipal Char-
ter, art. II, § 2.01, and the City Manager had the power to “[e]xecute
contracts, deeds[,] and other documents on behalf of the City as
authorized by the Council,” id., art. III, § 3.04(9) (emphasis added).
Here, through Resolution No. 19-04 sections 2 and 3, the City
Council authorized the City Manager to purchase Doral 10’s prop-
erty and to take “such further action as may be necessary” for the
purchase. The City Council also authorized the City Manager,
through Resolution No. 19-26 sections 3 and 4, to execute the con-
tract for the roadway improvement project and to take “such
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2 L UCK , J., Dissenting 20-13528
further action as may be necessary” for the contract. Under state
law, the City Council was the final policymaker for taking or buy-
ing property and authorizing the roadway improvement project.
Doral 10 asserts that “controlling law already recognizes
that city managers in . . . mayor-council-manager local govern-
ments [in the City’s county] are the final decisionmakers.” But the
cases that Doral 10 cites for this proposition say that the City Man-
ager was the final policymaker for the City’s employment deci-
sions, not for property acquisition or roadway improvement. As
we’ve explained, “[a]n official or entity may be a final policymaker
with respect to some actions but not others.” McMillian v. Johnson,
88 F.3d 1573, 1578 (11th Cir. 1996). The policymaker inquiry fo-
cuses on the “particular subject matter” of the alleged constitu-
tional violation. Morro v. City of Birmingham, 117 F.3d 508, 514 (11th
Cir. 1997) (explaining that “a municipal official does not have final
policymaking authority over a particular subject matter when that of-
ficial’s decisions are subject to meaningful administrative review”
(emphasis added)); Bannum, Inc. v. City of Ft. Lauderdale, 901 F.2d
989, 997 (11th Cir. 1990) (explaining that for “a single decision [to]
be sufficient to establish unconstitutional municipal policy under
section 1983 . . . [t]he challenged action must have been taken pur-
suant to a policy adopted by the official or officials responsible for
making policy in that particular area of the city’s business” (emphasis
added) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)
(plurality opinion))). Here, the City’s charter and the resolutions
gave the City Council the authority to take or purchase property
and authorize contracts.
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20-13528 L UCK , J., Dissenting 3
Because the City Council was the final policymaker, its de-
cisions—not the City Manager’s—represented the City’s official
policy. And because Doral 10 does not plausibly allege a taking or
seizure by the City’s final policymaker—the City Council—it has
not established that the City was liable for the City Manager and
JVA Engineering’s alleged unconstitutional acts. Thus, I would af-
firm the district court’s dismissal of the claims against the City.
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