                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________        U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 05-10332                  September 12, 2005
                        Non-Argument Calendar            THOMAS K. KAHN
                      ________________________                 CLERK


                D. C. Docket No. 04-00280-CV-T-30-MAP

ALBERT H. BAILEY,

                                                          Plaintiff-Appellant,

                                 versus

CITY OF PINELLAS PARK,

                                                                  Defendant,

CITY OF ST. PETERSBURG,
MICHAEL KRAUJALIS, individually,

                                                       Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________
                         (September 12, 2005)


Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:

        This action arises out of the City of St. Petersburg’s (the “City”) attempts to

demolish Appellant Albert Bailey’s residence pursuant to the City’s finding that

the structure was unfit and/or unsafe. Bailey alleged that the actions of the City

and Building Demolition Coordinator Michael Kraujalis, in his individual

capacity, (collectively, “Appellees”) violated Bailey’s Fourteenth Amendment due

process rights as secured by 42 U.S.C. § 1983. The district court granted

Appellees’ motion for summary judgment after denying Bailey’s motion to file a

third amended complaint. Based on our review of the record, we affirm.

                          I. Background and Procedural History

        On May 31, 2002, the City issued a Notice of Condemnation and Order to

Demolish a detached garage at Bailey’s residence. Bailey timely requested an

appeal hearing, which was conducted by Hearing Officer David J. Sockol on July

10, 2002. The hearing was resumed on January 8, 2003 and continued on

February 12, 2003 as a result of the City’s intervening Notice of Condemnation

and Order to Demolish Bailey’s residence, attached garages and metal fence.1

        During the hearings, the City presented testimony and evidence from four



        1
               This intervening notice was sent to Bailey via certified and first class mail on August 8,
2002. In response to the notice, Bailey timely requested an additional appeal hearing.

                                                    2
witnesses: Building Demolition Coordinator Michael Kraujalis, Registered

Professional Engineer Rita Oglesby, City Building Official Milton Massanet, and

Codes Compliance Assistance Department Director Sally Eichler. Bailey, who

represented himself during the July 10 hearing but was represented by counsel

during subsequent hearings, testified and presented evidence in his own behalf,

including the testimony of a licensed engineer.

      Prior to the final hearing, Bailey was given the option of entering into a

stipulation agreement with the City to rehabilitate his residence to avoid

demolition. In conjunction with this offer, Bailey received a list of the City’s

requirements and conditions for entering into a stipulation agreement.

      On November 20, 2003, Hearing Officer Sockol issued his Findings of Fact,

Conclusions of Law, and Final Order Conditionally Approving Demolition.

Sockol upheld City findings that Bailey’s residence was unfit and/or unsafe. He

further noted that Bailey had failed to provide the City with certain documentation

necessary to enter into a valid stipulation agreement. Sockol thus conditionally

approved the demolition order, subject to Bailey having forty-five days to either

enter a valid stipulation agreement with the City or have the residence demolished

by a private contractor under proper building permits. Finally, Sockol’s order

advised that “[a]ny party aggrieved by this decision has thirty (30) days from the

                                          3
date of this order in which to seek judicial review in the Circuit Court of the Sixth

Judicial Circuit.”

        Bailey’s counsel filed a notice of appeal with the Sixth Judicial Circuit on

December 19, 2003. Because the notice of appeal sought procedurally improper

relief, the court dismissed it without prejudice on December 30, 2003.2 Bailey was

given thirty days to file a valid petition for a writ of certiorari. At the time of this

appeal, he had yet to do so.

        Bailey filed the present action on February 17, 2004. He argued that the

City violated his due process rights, and he asked the district court to enjoin

demolition of his house and award him attorney’s fees and monetary damages.

After filing two amended complaints, Bailey was denied leave to file a third. The

district court then granted Appellees’ motion for summary judgment as to Bailey’s

second amended complaint. On appeal, Bailey argues that the district court erred

in granting Appellees’ motion for summary judgment and in denying him leave to

file a third amended complaint.

                                     II. Standard of Review

        This court reviews a district court's grant of summary judgment de novo.



        2
                The court noted that the proper procedure for seeking relief from a final decision
rendered by the City was by filing a petition for a writ of certiorari.

                                                    4
Nolen v. Boca Raton Cmty. Hosp., Inc., 373 F.3d 1151, 1154 (11th Cir. 2004). A

district court’s decision to grant or deny leave to amend is generally reviewed for

abuse of discretion. Burger King Corp. v. C.R. Weaver, 169 F.3d 1310, 1315

(11th Cir. 1999). However, to the extent the denial of leave to amend is based on

futility, we review the trial court’s decision de novo. Id.

                                    III. Discussion

A. Substantive Due Process

      Bailey first argues that the City’s condemnation of his residence violated his

substantive due process rights. As the district court correctly noted, the

substantive component of the Due Process Clause protects only “fundamental”

rights. McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (citing Palko v.

Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 152 (1937)). Fundamental rights

“are protected against certain government actions regardless of the fairness of the

procedures used to implement them.” McKinney, 20 F.3d at 1556 (internal

quotation omitted). In contrast, “areas in which substantive rights are created only

by state law . . . are not subject to substantive due process protection . . . because

substantive due process rights are created only by the Constitution.” Id. (internal

quotation omitted). Such state law-based rights can be rescinded “so long as the

elements of procedural – not substantive – due process are observed.” Id.

                                           5
        Property interests like those that Bailey enjoys in his residence are created

and defined by state law rather than the Constitution. Greenbriar Village, L.L.C.

v. Mountain Brook City, 345 F.3d 1258, 1262 (11th Cir. 2003) (citing Board of

Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972)). They are not

fundamental rights, and thus they are not entitled to substantive due process

protection.3 See id. at 1262-63 (“[N]on-legislative deprivations of state-created

rights, which would include land-use rights, cannot support a substantive due

process claim.); see also Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229,

106 S. Ct. 507, 515 (1985) (Powell, J., concurring) (“While property interests are

protected by procedural due process even though the interest is derived from state

law rather than the Constitution . . . substantive due process rights are created only

by the Constitution.”). The district court correctly held that Appellees were

entitled to summary judgment on Bailey’s substantive due process claim.

B. Procedural Due Process

        Bailey next argues that the City’s condemnation of his residence violated

his procedural due process rights. “Procedural due process requires notice and an


        3
                 In an effort to establish his entitlement to substantive due process protection in this case,
Bailey argues on appeal that he has a constitutionally created, and thus, fundamental, liberty or privacy
interest “in having a homestead to live in.” Bailey cites, and this court’s research has produced, no
federal appellate cases supporting this argument, which we find to be wholly without merit. Accord
Lindsey v. Normet, 405 U.S. 56, 73, 92 S. Ct. 862, 874 (1972) (holding that there is no constitutional
guarantee of housing).

                                                      6
opportunity to be heard before any governmental deprivation of a property

interest.” Zipperer v. City of Fort Myers, 41 F.3d 619, 623 (11th Cir. 1995)

(citations omitted). In order to determine whether a procedural due process

violation occurred in this case, we must determine (1) whether Bailey had a

constitutionally protected property interest; (2) whether he was deprived of that

interest; and (3) whether the City failed to use constitutionally sufficient

procedures in effecting the deprivation. Id. The first two questions can easily be

answered in the affirmative; Bailey’s property interest in his residence is

constitutionally protected, and the City seeks to deprive him of that interest. Our

analysis thus focuses on the third prong of the procedural due process inquiry.

      The Supreme Court has often noted that due process is a flexible concept

that varies depending on the facts of a particular case. See, e.g., Zinermon v.

Burch, 494 U.S. 113, 127, 110 S. Ct. 975, 984 (1990). However, it is widely

accepted that due process requirements are satisfied in the eviction/condemnation

context when the occupant receives adequate notice and a hearing. See, e.g.,

Grayden v. Rhodes, 345 F.3d 1225, 1236 (11th Cir. 2003) (“As a general rule, an

eviction must be preceded by notice and an opportunity to be heard.”); Thomas v.

Cohen, 304 F.3d 563, 576 (6th Cir. 2002) (“Due process generally requires notice

and a hearing prior to eviction.”). In this case, the City provided Bailey with two

                                           7
notices of condemnation. Bailey received these notices and filed timely appeals,

and Hearing Officer Sockol conducted three separate hearings over the course of

several months. Bailey was represented by counsel during two of those hearings,

and he was allowed to present evidence and testify on his own behalf. Bailey was

also notified of his right to appeal Hearing Officer’s Sockol’s decision after it was

issued, a right which he declined to exercise.4 Given these facts, we have no

difficulty concluding that the City’s procedures were sufficient to constitute due

process. The district court correctly granted Appellees’ motion for summary

judgment on this claim as well.

C. Leave to Amend

        Bailey’s final argument is that the district court erred in denying him leave

to file a third amended complaint. While the district court’s opinion does not

discuss the decision to deny Bailey leave to file a third amended complaint, our

review of the transcript indicates that the denial was likely based on the court’s

conclusion that further amendments would be futile. We thus review the court’s


        4
                  In addition to providing notice, three hearings, and notice of the right to appeal, the City
also provided Bailey with the opportunity to enter into a stipulation agreement to rehabilitate the
residence and avoid demolition. In fact, most of Bailey’s arguments on appeal focus on the conditions
that the City attached to the stipulation agreement. We agree with the district court that Bailey’s
displeasure with these conditions, of which he was aware prior to Hearing Officer Sockol’s final
judgment, do not indicate a lack of due process. We further agree with the district court that Bailey’s
proper avenue for raising his concerns with the terms of the stipulation agreement was to appeal within
the state court system rather than to file the present federal action.

                                                       8
denial of Bailey’s request de novo, bearing in mind that such requests should be

liberally granted when necessary in the interest of justice. Burger King, 169 F.3d

at 1315, 1319.

      Having reviewed the record, we cannot conclude that the district court erred

in denying Bailey’s request to file a third amended complaint. The purposes of

Bailey’s requested amendment were to add an additional city official as a party

and to make allegations regarding the City’s alleged efforts to prevent Bailey from

entering into a stipulation agreement. None of these accusations have any bearing

on the question of whether the City violated Bailey’s constitutional due process

rights to notice and a hearing. Because Bailey suffered no constitutional

deprivation, no amendment to his complaint could have enabled him to avoid

summary judgment. Thus, the district court correctly concluded that allowing

Bailey to file another amended complaint would be futile.

                                   IV. Conclusion

      Because it correctly concluded that Bailey has not suffered the deprivation

of any constitutional right, the district court properly granted the City’s motion for

summary judgment and denied Bailey’s request to file a third amended complaint.

Its opinion is therefore AFFIRMED.




                                          9
