345 F.3d 1225 (11th Cir. 2003), 02-10218, Grayden v. Rhodes

Docket Nº:02-10218
Citation:345 F.3d 1225
Party Name:Grayden v. Rhodes
Case Date:September 17, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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345 F.3d 1225 (11th Cir. 2003)

Deborah GRAYDEN, Charles Jackson, et al., Plaintiffs-Appellees,


Mike RHODES, individually, Defendant-Appellant.

No. 02-10218.

United States Court of Appeals, Eleventh Circuit

September 17, 2003

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[Copyrighted Material Omitted]

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Melinda Gaye Baum, Robert E. Bonner, Meier, Lengauer, Bonner, Muszynski & Doyle, P.A., Orlando, FL, for Defendant-Appellant.

Michelle Ku, Orlando, FL, Peter Prescott Sleasman, Southern Legal Counsel, Inc., Gainesville, FL, Cathy L. Lucrezi, Fort Myers, FL, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before BIRCH and COX, Circuit Judges, and GEORGE [*], District Judge.

COX, Circuit Judge:

This case comes to us on interlocutory appeal following the district court's rejection of a city code enforcement officer's claim of qualified immunity. In this appeal, we must determine whether the Due Process Clause of the Fourteenth Amendment is violated when a code enforcement officer condemns an apartment complex and evicts the tenants without providing the tenants with contemporaneous notice of their right to appeal the condemnation decision. If we conclude that such conduct violates the Due Process Clause, we must then determine whether the tenants' right to contemporaneous notice was established with such clarity at the time of eviction in this case that the chief of the City of Orlando's Code Enforcement Bureau is not entitled to qualified immunity.

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Beginning on March 7, 2000, city officials inspected all of the units of Lafayette Square, a residential apartment complex located in Orlando, Florida ("the City"). 1 Based on these inspections, the City notified the owner of Lafayette Square that city code violations at the complex presented a serious and continuing danger to its occupants, and threatened to declare the building unfit for human occupancy if the violations were not corrected. 2 The owner was informed that the City of Orlando Code Enforcement Board ("the Board"), an independent administrative body created under Florida law, 3 would conduct a hearing on July 12, 2000, to consider the conditions at Lafayette Square.

The code violations were not corrected. On June 29, two weeks before the scheduled Board hearing, city officials posted notices on each apartment door at Lafayette Square directing residents to vacate the property by 5:00 p.m. on June 30. They also posted a condemnation notice on the main doors of each building of the complex that declared the complex to be unsafe, directed residents to vacate the buildings, and informed them that they would be subject to possible arrest or prosecution if they did not vacate immediately. The condemnation decision was made by Mike Rhodes, the chief of the City's Code Enforcement Bureau, and he signed the condemnation notices. The notices did not inform the tenants of any right to a hearing to challenge the condemnation decision.

On June 30, Richard Cato, an attorney for Greater Orlando Area Legal Services, notified the city attorney that several tenants requested a hearing pursuant to Section 30A.11 of the Orlando City Code ("the City Code" or "the Code"). Under that section,

Any person affected by any notice which has been issued in connection with the enforcement of any provision of this Code or of any rule or regulation adopted pursuant thereto may request and shall be granted a hearing on the matter before the Code Enforcement Board pursuant to Chapter 5 of the City Code.

Orlando, Fla. City Code § 30A.11. Cato also indicated that the tenants would seek an injunction if the City refused to stay its code enforcement activity.

The City continued its enforcement efforts, and on July 12 three former tenants of Lafayette Square filed a complaint in federal district court. The complaint alleged a 42 U.S.C. § 1983 procedural due process claim and a Fair Housing Act claim against the City and against Rhodes in his individual capacity. 4 The tenants also filed a motion for a temporary restraining order that would prohibit any

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further code enforcement action regarding Lafayette Square until they had a meaningful opportunity to challenge the condemnation decision.

On that same day, July 12, the Board conducted its previously-scheduled hearing regarding the violations at Lafayette Square. A notice of this hearing had been published in the Orlando Sentinel on July 2 and July 9. Cato and one of the plaintiffs attended and testified at the hearing. 5 At the hearing, the Board ultimately concluded that Lafayette Square was in violation of the City Code.

At the July 12 hearing, Cato asked the Board to schedule a second hearing to allow the tenants to address the Board. The Board agreed to do so, and scheduled a hearing for July 26. Notice of this hearing was mailed to every tenant's last known address on July 19 or 20, although at least one tenant asserts that he never received the notice. Notice was posted on the Lafayette Square property, and it also was published in the July 23 edition of the Orlando Sentinel. Because a hearing had been scheduled for July 26, the district court denied the plaintiffs' motion for a temporary restraining order.

On July 26, the Board conducted the second hearing. Cato attended the hearing and he was joined by five former tenants of Lafayette Square, two of whom testified. 6 At the conclusion of the hearing, the Board decided to allow the decision rendered at the July 12 hearing (finding Lafayette Square to be in violation of the City Code) to stand.

Several months later, the complaint was amended to add several additional plaintiffs 7 and new claims. The amended complaint alleges two claims against Rhodes: a Fair Housing Act claim that has since been dismissed 8 and the § 1983 procedural due process claim that is the focus of this appeal. The complaint also alleges claims against the City and the Board, 9 but these claims are not implicated by Rhodes' interlocutory appeal on the issue of qualified immunity.

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Rhodes filed a motion for summary judgment on the § 1983 procedural due process claim based on qualified immunity, and his motion was referred to a magistrate judge. The magistrate judge identified three possible procedural due process violations alleged against Rhodes: (1) a violation of the plaintiffs' constitutional right to be timely notified of the initial code violations; (2) a violation of their constitutional right to due process at the time of eviction (pre-deprivation due process); and (3) a violation of their constitutional right to due process following eviction (post-deprivation due process). As to the first alleged violation, the magistrate judge concluded that the plaintiffs had not demonstrated that they had a clearly established right to notice of the initial code violations. The magistrate judge held that Rhodes was entitled to qualified immunity as to the second allegation as well, reasoning that a tenant is not entitled to pre-deprivation notice or a pre-deprivation hearing if exigent circumstances exist and finding that Rhodes' belief that exigent circumstances existed in this case was reasonable.

But the magistrate judge reached a different result with regard to the plaintiffs' post-deprivation due process claim. The judge found that when a pre-deprivation hearing cannot be conducted due to exigent circumstances, immediate post-deprivation notice is constitutionally required. Because Rhodes did not provide the tenants with personal notice of their right to seek review of the condemnation decision, the magistrate judge concluded that Rhodes was not entitled to qualified immunity as to the plaintiffs' claim of inadequate post-deprivation notice. 10 The district court adopted the magistrate judge's report and recommendation, and Rhodes appeals.


The only issue on appeal is whether Rhodes is entitled to qualified immunity as to the plaintiffs' post-deprivation due process claim. More specifically, the issue is whether Rhodes is entitled to qualified immunity as to the plaintiffs' claim of constitutionally-inadequate post-deprivation notice; the plaintiffs allege that the City and the Board, but not Rhodes, are responsible for the alleged failure to provide a meaningful hearing. 11

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We review the district court's denial of qualified immunity de novo. Lambert v. Fulton County, Ga., 253 F.3d 588, 596 (11th Cir. 2001). Because the issue of qualified immunity was raised in Rhodes' summary judgment motion, we view the facts in the light most favorable to the plaintiffs. Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 925-26 n. 3 (11th Cir. 2000).


In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court observed that qualified immunity shields government officials who perform discretionary functions 12 from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights. Id. at 818, 102 S.Ct. at 2738. Five years later, in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Court clarified that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 640, 107 S.Ct. at 3039. In sum, a government official is not entitled to qualified immunity if his or her conduct violated a clearly established statutory or constitutional right and if the contours of the right were defined with such clarity that a reasonable official would have understood, at the time, that the conduct at issue violated that right.


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