Spencer v. Benison

• Decision Date: 16 July 2021
• Docket Number: No. 18-14397,18-14397
• Citation: 5 F.4th 1222
• Parties: Beverly SPENCER, C.B.S. Properties LLC, B & V Wrecker Service Inc., Plaintiffs-Appellees, v. Sheriff Jonathan BENISON, in his individual and official capacities, Defendant-Appellant, Dream Inc., Belle Mere Properties, LLC, Accuity Capital Group LLC, Bernard Gomez, individually and as registered agent of Belle Mere Properties LLC, Che D. Williamson, individually and as registered agent of Belle Mere Properties LLC, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

5 F.4th 1222

Beverly SPENCER, C.B.S. Properties LLC, B & V Wrecker Service Inc., Plaintiffs-Appellees,

v. Sheriff Jonathan BENISON, in his individual and official capacities, Defendant-Appellant,Dream Inc., Belle Mere Properties, LLC, Accuity Capital Group LLC, Bernard Gomez, individually and as registered agent of Belle Mere Properties LLC, Che D. Williamson, individually and as registered agent of Belle Mere Properties LLC, Defendants-Appellees.

No. 18-14397

United States Court of Appeals, Eleventh Circuit.

July 16, 2021

Bobby H. Cockrell, Jr., Gregory Scotch Ritchey, Jr., Cockrell, Cockrell Townsend & Ritchey, LLP, Jonathan David Townsend, Sydney Cook & Associates, LLC, Tuscaloosa, AL, for Plaintiffs-Appellees.

James Randall McNeill, Todd A. Brown, Jamie Helen Kidd Frawley, Kendrick Emerson Webb, Webb McNeill Walker, PC, Montgomery, AL, for Defendant-Appellee Jonathan Benison.

E Kenneth Aycock, Jr., E. Kenneth Aycock, PC, Mark A. Scogin, Espy Scogin and Cain, PC, Tuscaloosa, AL, for Defendants-Appellees Dream Inc., Belle Mere Properties LLC, Accuity Capital Group LLC, Bernard Gomez, Che D. Williamson.

Before NEWSOM and BRANCH, Circuit Judges, and BAKER,^* District Judge.

BRANCH, Circuit Judge:

Sheriff Jonathan Benison appeals from the district court's denial of summary judgment to him in this 42 U.S.C. § 1983 lawsuit. Beverly Spencer sued Benison, alleging that Benison violated his Fifth and Fourteenth Amendment rights by ordering him to remove cones and vehicles that were preventing Spencer's neighbor from completing construction that Spencer alleged encroached on his property. The district court denied Benison's motion for summary judgment because it found that Benison acted outside the scope of his discretionary authority when he ordered Spencer to remove the cones and vehicles and thus was not entitled to qualified immunity on Spencer's individual capacity claims, and also that Spencer had presented adequate evidence of a constitutional violation to sustain his § 1983 claims against Benison in both his individual and official capacities. Because we conclude that Benison was acting within the scope of his discretionary authority when he ordered Spencer to remove the cones and vehicles and that Spencer failed to present adequate evidence of a constitutional violation to sustain his § 1983 claims, we reverse.

I. Background¹

A. Facts

On April 1, 2011, Belle Mere Properties, LLC, purchased a parcel of real estate from Spencer.² As part of the sale, Spencer granted Belle Mere "an easement of 25 feet on either side of the existing power line ... for the purpose of ingress and egre[ss]." Belle Mere then leased the property to Accuity Capital Group, LLC, which leased the property to Dream, Inc., which began operating a bingo hall on the property, called Frontier Bingo.

Shortly thereafter, Spencer and Belle Mere began to disagree over the boundaries of the easement. In late 2015 or early 2016, Belle Mere decided to expand a previously constructed roadway running through the easement from Frontier Bingo to U.S. Highway 11. On January 13, 2016, Spencer called 911 to report that a bulldozer was trespassing on his property. A sheriff's deputy responded to the call and asked the bulldozer operator to stop working. The bulldozer operator complied with the deputy's request. On January 18, 2016, Spencer again called 911 to report that a bulldozer was trespassing on his property. Another sheriff's deputy responded to the call and asked the bulldozer operator to stop working, and the bulldozer operator complied. Finally, on February 24, 2016, Spencer called 911 to complain about continued construction. This time, Benison responded to the call.

When Benison arrived, he observed that Spencer had placed cones and vehicles to block construction from taking place.³ He also observed that traffic was backed up on U.S. Highway 11. Benison told Spencer that he was concerned that the cones and vehicles would prevent customers from being able to access Frontier Bingo and that the obstructions were a public safety issue because the fire department might not be able to access Frontier Bingo in case of an emergency.⁴ He then said "I've got customers in here. People got customers in here. You can't block these folks." Spencer denied that his cones and vehicles were preventing people from entering or exiting the bingo hall.⁵

Benison then ordered Spencer to remove the cones and vehicles and threatened to arrest Spencer if he continued to block the road. While at the scene, Benison spoke by phone with Spencer's lawyer. Spencer's lawyer informed Benison that "they were attempting to get an injunction to prevent the construction workers from coming onto Spencer's property."⁶ Spencer alleges that, as a result of Benison's order, he stopped confronting Belle Mere about its construction and that, accordingly, Belle Mere ultimately was able to complete the construction of a roadway that encroached on his property. Belle Mere's road construction, Spencer contends, deprived him of his property.

Spencer asserts that Benison had a personal financial interest in the success of Frontier Bingo. Under the Alabama Constitution, Benison had the authority to "promulgate rules and regulations for the licensing, permitting, and operation of bingo games within [Greene County]." Ala. Const. amend. 743. In 2011, pursuant to this authority, Benison promulgated the Rules and Regulations for the Operation of Bingo Within Greene County Alabama ("Rules and Regulations"). The Rules and Regulations provided that Benison had the authority to license and regulate bingo halls in Greene County and that the Greene County Sheriff's Office would receive half of each $2,500.00 license fee paid by the bingo halls. Subsequent amendments to the Rules and Regulations provided that the Greene County Sheriff's Office would receive $110 a month for each electronic bingo machine.

B. Procedural History

On August 16, 2016, Spencer sued Benison in his individual and official capacities under 42 U.S.C. § 1983 for deprivation of property and liberty rights, and conspiracy to commit § 1983 violations.⁷ He alleged that Benison deprived him of property without due process and that Benison conspired with others to "take and use" his property "without due process or compensation."⁸ In particular, he alleged that, because of Benison's actions, Belle Mere had been able to "buil[d] a roadway outside the bounds of [its] easement and on [his] property," and "remove[ ] dirt and many trees from [his] property for [its] own use." After discovery, Benison moved for summary judgment on Spencer's claims and asserted the defense of qualified immunity.

On October 9, 2018, the district court denied Benison's motion for summary judgment. It found that Benison was not entitled to qualified immunity on Spencer's individual capacity claims because he "failed to establish that he was acting within the scope of his discretionary authority" when he ordered Spencer to remove the cones and vehicles. It also found that Benison was not entitled to summary judgment on Spencer's individual or official capacity claims because Spencer had presented sufficient evidence of a constitutional violation, at that stage of the proceedings, to sustain his § 1983 constitutional and conspiracy claims.⁹ Benison timely appealed.

II. Standard of Review

We review the district court's denial of qualified immunity to Benison de novo . Patel v. City of Madison , 959 F.3d 1330, 1336 (11th Cir. 2020). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) ; see Grider v. City of Auburn , 618 F.3d 1240, 1246 n.1 (11th Cir. 2010). We also review issues of appellate jurisdiction de novo . Patel , 959 F.3d at 1337.

III. Appellate Jurisdiction

As an initial matter, Spencer argues that we lack appellate jurisdiction over this interlocutory appeal because Benison has only appealed issues of evidentiary sufficiency. See Cottrell v. Caldwell , 85 F.3d 1480, 1485 (11th Cir. 1996) ("[W]e lack interlocutory appellate jurisdiction ... where the sole issues on appeal are issues of evidentiary sufficiency."). In general, "we are ... barred from entertaining appeals of non-final orders." Hall v. Flournoy , 975 F.3d 1269, 1274 (11th Cir. 2020) ; see 28 U.S.C. § 1291 ("The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States ...."). But under the "collateral order doctrine," we may review "some determinations, including certain denials of qualified immunity ... even though the underlying case is still ongoing in the trial court."¹⁰ Hall , 975 F.3d at 1274. In particular, we may review the denial of a claim of qualified immunity "to the extent that it turns on an issue of law." Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ; see Hall , 975 F.3d at 1276 ("[T]he Supreme Court has reiterated that when legal questions of qualified immunity are raised—either to determine whether any constitutional right was violated or whether the violation of that right was clearly established—interlocutory appellate jurisdiction exists."); Cottrell , 85 F.3d at 1485 (holding that we may exercise jurisdiction "where the denial is based even in part on a disputed issue of law").

We have jurisdiction over Benison's appeal because it turns on issues of law. Benison disputes the level of generality the district court used to assess the scope of his discretionary authority, which is an issue of law. See Estate of Cummings v. Davenport , 906 F.3d 934, 940 (11th Cir. 2018) (treating the scope of an officer's discretionary authority as an issue of law). He also challenges whether Spencer can establish a "violation of a constitutional right" and whether Spencer's "constitutional right[s] [were] ‘clearly established’ at the time" he acted—both issues...