              Case: 12-12616    Date Filed: 04/29/2013   Page: 1 of 6




                                                                [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-12616
                           ________________________

                    D.C. Docket No. 2:10-cv-00392-UA-DNF

APOTHECARY DEVELOPMENT CORPORATION,
d.b.a. Island Drug,
LARRY G. HEINE,
SUSAN K. HEINE,

                         Plaintiffs - Appellees,

versus

CITY OF MARCO ISLAND FLORIDA,

                         Defendant,

THOM CARR,
individually and as Chief of Police of Marco Island, Florida,

                         Defendant - Appellant.
                          ________________________

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

                                  (April 29, 2013)
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Before DUBINA, Chief Judge, BARKETT and KLEINFELD, * Circuit Judges.

PER CURIAM:

       Appellant Thom Carr appeals the district court’s denial of his motion to

dismiss Appellee Apothecary Development Corporation d/b/a Island Drug, Larry

G. Heine, and Susan K. Heine’s (collectively “Plaintiffs”) 42 U.S.C. § 1983

complaint. Carr argues that Plaintiffs failed to assert violations of clearly

established constitutional rights and that he is entitled to qualified immunity. We

agree with Carr that Plaintiffs have failed to properly allege a violation of their

equal protection rights. However, we also agree with the district court’s order that

Plaintiffs have properly alleged violations of their substantive due process rights

and that dismissal based on qualified immunity at this stage in the proceedings

would be premature. Accordingly, we affirm in part and reverse in part the district

court’s order denying Carr’s motion to dismiss.

                                               I.

       In their second amended § 1983 complaint, Plaintiffs allege that from June

9, 2010, Carr, along with other members of the Marco Police department, began a

“systematic police operation designed to harass” Island Drug and disturb its

business operations. [R. 47 ¶ 9.] The district court summarized Plaintiffs’

allegations in this regard, explaining that they:

       *
          Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit,
sitting by designation.
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      include posting police vehicles in conspicuous locations near the
      business premises so as to inhibit patronage; issuing trespass
      warnings, searching, and threatening to arrest Plaintiffs’ customers
      without reasonable suspicion, probable cause, or legal justification of
      any kind; harassing and accosting Plaintiffs’ customers inside and
      outside of the business premises; demanding Plaintiffs cease filling
      lawful prescriptions for non-local residents; and threatening to close
      down business operations.

[R. 57 at 2.]

      The district court found that Plaintiffs’ complaint properly pleaded

violations of both their substantive due process and equal protection rights. The

district court also found that dismissal based on qualified immunity was not

warranted. This appeal follows.


                                          II.

      We review de novo the district court’s denial of Carr’s motion to dismiss

based on qualified immunity. See Maggio v. Sipple, 211 F.3d 1346, 1350 (11th

Cir. 2000). “An appellate court reviewing the denial of the defendant’s claim of

immunity need not consider the correctness of the plaintiff’s version of the facts,

nor even determine whether the plaintiff’s allegations actually state a claim,”

rather, we must determine only “whether the legal norms allegedly violated by the

defendant were clearly established at the time of the challenged actions.” Mitchell

v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816 (1985); see also Keating v.

City of Miami, 598 F.3d 753, 760 (11th Cir. 2010) (noting that “[t]his Court’s


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appellate jurisdiction in matters challenging the denial of qualified immunity in a

motion to dismiss extends only to the legal issues surrounding the district court’s

denial of [the defendants’ motion] to dismiss, i.e., issues concerning whether [the

plaintiffs’] complaint sufficiently alleged the violation of a clearly established

right” (internal quotation marks omitted)).

                                          III.

      Looking at the four corners of the complaint, and taking its allegations to be

true, we agree with the district court that at this stage of the proceedings, Plaintiffs

have provided sufficient facts to establish a violation of their substantive due

process rights. The complaint alleges that as a result of Carr’s actions, Plaintiffs

have lost the freedom to pursue the livelihood of their choice. If true, such

behavior is a violation of a clearly established constitutional right. See Buxton v.

City of Plant City, Fla., 871 F.2d 1037, 1045 (11th Cir. 1989) (noting that the

Fourteenth Amendment’s due process clause guarantees citizens the right “to be

free in the enjoyment of all his facilities; to be free to use them in all lawful ways;

to live and work where he will; to earn his livelihood by any lawful calling; and to

pursue any livelihood or avocation”). Accordingly, Plaintiffs’ substantive due

process allegations survive Carr’s motion to dismiss.

                                          IV.




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      Plaintiffs’ equal protections claims, however, do not survive, because they

have failed to provide sufficient facts to establish a violation of their equal

protection rights.

      Plaintiffs assert that Carr violated its equal protection rights because eight

other similarly situated pharmacies were not targeted by police. Although not

addressed by the district court, Plaintiffs have asserted a “class of one” claim. “[A]

‘class of one’ claim involves a plaintiff who ‘alleges that [it] has been intentionally

treated differently from others similarly situated and that there is no rational basis

for the difference in treatment.’” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1202

(11th Cir. 2007) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.

Ct. 1073, 1074 (2000)). In cases that involve a qualified immunity defense,

plaintiffs who fail to allege both elements of a “class of one” equal protection

claim have not met their burden of showing that the defendant’s conduct violated a

constitutional right. Id.

      Plaintiffs’ complaint baldly asserts that the alleged harassing behavior “is

being directed at and executed against Plaintiffs and their customers only, and not

against similarly situated pharmacies, employees and customers in the Marco

Island area.” [R. 47 ¶ 10q.] This is insufficient. “Bare allegations that ‘other’

[pharmacies], even ‘all other’ [pharmacies], were treated differently do not state an

equal protection claim; a complaint must attempt to show in some fashion that


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these ‘other’ [pharmacies] were situated similarly to the plaintiff.” GJR Invs., Inc.

v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1367-68 (11th Cir. 1998), abrogated on

other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009).

Accordingly, Plaintiffs’ equal protection claim must fail.

                                                V.

      We agree with the district court that dismissal of Plaintiffs’ complaint based

on qualified immunity grounds at the motion-to-dismiss stage is not appropriate in

this case. “Qualified immunity offers complete protection for government officials

sued in their individual capacities when acting within their discretionary authority

if their conduct ‘does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Mann v. Taser Int’l,

Inc., 588 F.3d 1291, 1305 (11th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818, 102 S. Ct. 2727, 2738 (1982)). As stated, Plaintiffs’ complaint has

sufficiently pleaded facts that, taken as true, violate Plaintiffs’ clearly established

substantive due process rights. As such, the district court was correct to deny

qualified immunity at this stage of the proceedings.

      The district court’s order is AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED FOR PROCEEDINGS CONSISTENT WITH

THIS OPINION.




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