         Case: 14-12482   Date Filed: 01/25/2016   Page: 1 of 25


                                                                   [PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-12482
                     ________________________

                 D.C. Docket No. 1:11-cv-22358-JAL



JAMES EDWARD HOEFLING, JR.,

                                                    Plaintiff - Appellant,

versus

CITY OF MIAMI,
RICARDO ROQUE,
JOSE GONZALEZ,

                                                    Defendants - Appellees.

                     ________________________

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

                          (January 25, 2016)
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Before JORDAN and JULIE CARNES, Circuit Judges, and GOLDBERG, * Judge.

JORDAN, Circuit Judge:

      For about eight years, James Edward Hoefling, Jr. lived on his 29-foot

sailboat in state waters off the South Florida coast. In August of 2010, however,

City of Miami marine patrol officers seized the sailboat and had it destroyed.

According to Mr. Hoefling—who sued the City and its officers under 42 U.S.C. §

1983, federal maritime law, and state law—they did so unlawfully, without

justification and without notice.

      Mr. Hoefling appeals from the district court’s dismissal of his second

amended complaint in its entirety.         After a review of the record, and with the

benefit of oral argument, we conclude that the district court got some things right

and some things wrong. We therefore affirm in part, reverse in part, and remand

for further proceedings.

                                             I

      The second amended complaint, which is the operative pleading, alleges the

following facts, which we accept as true. See Timson v. Sampson, 518 F.3d 870,

872 (11th Cir. 2008).




      *
          Honorable Richard W. Goldberg, Judge of the United States Court of International
Trade, sitting by designation.

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                                            A

      In late May of 2010, while Mr. Hoefling was aboard his sailboat in Dinner

Key, several City marine patrol officers pulled alongside in their own vessel. At

the time, the sailboat was seaworthy and had an intact hull, a mast, an engine, a

rudder, working sails (which were stored in the cabin), and an anchor light. Mr.

Hoefling told the officers that he was the owner of the sailboat, produced U.S.

Coast Guard documentation of his ownership, and provided his driver’s license and

cell phone number. Officer Alejandro Macias incorrectly opined to Mr. Hoefling

that the sailboat was derelict or at risk of being derelict. Contrary to what Officer

Macias said, the sailboat was not derelict under Florida law, as it was not “left,

stored, or abandoned” in a “wrecked, junked, or substantially dismantled

condition.” Fla. Stat. § 823.11.

      None of the officers advised Mr. Hoefling that he was at risk of having his

sailboat taken away or destroyed. One of the officers, however, cited Mr. Hoefling

for not having a marine sanitary device and told him that he should get a better

anchor light. The officers also told Mr. Hoefling that he needed to take care of

these issues “or move his vessel.”

      Before leaving, one of the officers placed a City of Miami code enforcement

notice on the side of the vessel. The notice contained five boxes with possible

code violations (lost or abandoned property, goods stored on private property,


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property unlawfully parked in a residential district, vessel obstructing an

established City channel, and unlawful anchoring, mooring, or docking). None of

the five boxes on the notice, however, were checked off.

      Within days of his interaction with the officers, Mr. Hoefling purchased a

marine sanitary device and installed a better anchor light. He continued to live in

the sailboat for the next three months. During that time, he received no further

communication from the City indicating that he had to do more to bring his

sailboat into legal compliance.

      On August 20, 2010, while he was on a short trip for work-related reasons,

Mr. Hoefling received a call from a friend who told him that the police had taken

his sailboat.    Mr. Hoefling later found out that this was part of the City’s

systematic roundup and destruction of ugly boats—what the City calls a “cleanup”

program.

      When he returned from his trip, he learned that the City and two of its

marine patrol officers—Officer Ricardo Roque and Sergeant Jose Gonzalez—had

seized and destroyed his sailboat and everything contained inside. He eventually

located the remains of his sailboat and personal possessions in a trash dumpster. In

the years since the destruction of his sailboat, Mr. Hoefling has been forced to live

a transient lifestyle, requiring the assistance of others for shelter and other

necessities.


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       According to the second amended complaint, the City and its officers did not

have the legal authority to seize and destroy the sailboat, as it was not abandoned

or derelict, had an identifiable owner, and did not pose a hazard to navigation or

the environment. Even if the sailboat was deemed to be abandoned or derelict, Mr.

Hoefling alleged, the City and its officers were required to provide him adequate

notice (such as placing a notice of dereliction on the vessel and informing him of

the notice) and consider alternatives to immediate destruction, such as taking the

sailboat to a compound or marking it off with reflective tape and broadcasting a

notice to mariners. 1

                                              B

       The second amended complaint—which named the City, Officer Roque, and

Sgt. Gonzalez as defendants—contained five claims. Each of the claims was

asserted against all of the defendants.

       Count I, pursuant to § 1983, alleged substantive and procedural due process

violations under the Fourteenth Amendment; Count II, also pursuant to § 1983,

alleged an unreasonable search and seizure under the Fourth Amendment; Counts

III and IV, sounding in admiralty, respectively alleged the intentional and negligent

destruction of property; and Count V alleged an unconstitutional taking in violation

       1
          Unlike the initial complaint, which attached the May code enforcement notice, and the
first amended complaint, which attached several incident reports written by City marine patrol
officers, the second amended complaint did not have any exhibits.

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of the Florida and United States Constitutions. Mr. Hoefling sought compensatory

and punitive damages for the seizure and destruction of his sailboat.

      The district court granted the defendants’ Rule 12(b)(6) motion to dismiss

the second amended complaint, see Hoefling v. City of Miami, 17 F.Supp.3d 1227

(S.D. Fla. 2014) (Hoefling II), and its order of dismissal is the subject of this

appeal. Our review, unless otherwise noted, is plenary. See Hill v. White, 321

F.3d 1334, 1335 (11th Cir. 2003).

                                         II

      The district court dismissed the complaint on some general grounds and

some claim-specific grounds. We discuss the general grounds first.

                                         A

      The district court, quoting one of our decisions, applied a “heightened

pleading” standard to Mr. Hoefling’s § 1983 claims. See Hoefling II, 17 F.Supp.3d

at 1232 (quoting Keating v. City of Miami, 598 F.3d 753, 762–63 (11th Cir. 2010)).

As the defendants conceded at oral argument, this was incorrect.

      We used to apply a heightened pleading standard in § 1983 cases in an effort

to “eliminate nonmeritorious claims.” Arnold v. Bd. of Educ. of Escambia Cnty.,

880 F.2d 305, 309 (11th Cir. 1989). In 1993, however, the Supreme Court held, in

a municipal liability case under § 1983, that “it is impossible to square a

‘heightened pleading standard’ . . . with the liberal system of ‘notice pleading’ set


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up by the Federal Rules.” Leatherman v. Tarrant Cnty. Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 168 (1993). After Leatherman, we eliminated

the heightened pleading standard in § 1983 cases not involving qualified immunity.

See, e.g., Swann v. S. Health Partners, Inc., 388 F.3d 834, 837–38 (11th Cir.

2000).

      Following the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), we got rid of

heightened pleading altogether in § 1983 cases. We held that “it is clear that there

is no ‘heightened pleading standard’ as it relates to cases governed by Rule 8(a)(2),

including civil rights complaints.” Randall v. Scott, 610 F.3d 701, 710 (11th Cir.

2010). It is true that Keating—the case cited by the district court—equated our

former heightened pleading standard with the newer Iqbal standard, but we later

ruled in Randall that this language in Keating was dicta. See id.at 707 n.2.

      We expressly held in Randall, and reaffirm today, that “whatever

requirements our heightened pleading standard once imposed have since been

replaced by those of the Twombly-Iqbal plausibility standard . . . . [which] applies

to all civil actions . . . .” Id. See also Saunders v. Duke, 766 F.3d 1262, 1266

(11th Cir. 2014) (“After . . . Iqbal . . . , which applied the Twombly pleading

standard in a civil rights/qualified immunity context, there is no longer a

‘heightened pleading’ standard in ‘cases governed by Rule 8(a)(2), including civil


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rights [cases]’ under § 1983.”) (quoting Randall, 610 F.3d at 710) (alterations in

original). Accordingly, the district court should not have placed a “heightened

pleading” burden on Mr. Hoefling for his § 1983 claims. 2

                                                 B

       When he filed his initial complaint, Mr. Hoefling attached as an exhibit the

code enforcement notice left on his sailboat on May 27, 2010. And in his first

amended complaint, Mr. Hoefling attached as exhibits three City of Miami incident

reports (one for May 27, 2010, one for August 20, 2010, and one for September 20,

2010). Accepting as true the assertions of City marine patrol officers contained in

those reports, the district court had previously found that Mr. Hoefling had notice

of the derelict state of his sailboat. See Hoefling v. City of Miami, 876 F.Supp.2d

1321, 1328–31 (S.D. Fla. 2012) (Hoefling I).

       Although Mr. Hoefling did not attach the code enforcement notice or the

incident reports as exhibits to his second amended complaint, the district court—at

the defendants’ urging—considered the contents of those reports in ruling on the

motion to dismiss that complaint. Based in part on what the City marine patrol

officers wrote in those reports, the district court again found that Mr. Hoefling was


       2
         The district court did not have the benefit of Saunders when it dismissed Mr. Hoefling’s
second amended complaint. But Randall, which eliminated heightened pleading in all § 1983
cases, had already been decided. In any event, we cite to Saunders because we “appl[y] the law
as it exists at the time of its review, not as it existed at the time the district court rendered its
decision.” Bradford v. Bruno’s, Inc., 94 F.3d 621, 623 (11th Cir. 1996) (citing Gibson v.
Berryhill, 411 U.S. 564, 580–81 (1973)).
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told that his sailboat was derelict prior to its removal, and accordingly dismissed

the due process claims in Count I. The district court also relied on what the reports

said to conclude that the sailboat was in fact derelict. Given that conclusion, the

district court dismissed the Fourth Amendment claim in Count II and the takings

claim in Count V. And, relying in part on the reports to establish that the officers

were acting within their lawful authority, the district court dismissed the maritime

destruction of property claims in Counts III and IV. See Hoefling II, 17 F.Supp.3d

at 1237–38, 1243–44. This, too, was error.       Before we explain why, we take a

moment to describe the incident reports relied upon by the district court.

      The May 27 report, written by Officer Macias, indicated that Mr. Hoefling’s

sailboat “[was] derelict, in that it [was] left stored and abandoned in a substantially

dismantled condition upon public state waters. [It] ha[d] no motor, sails, helm or

rudder for propulsion or steering.” D.E. 33 at 14. In that same report, Officer

Macias stated that he told Mr. Hoefling about the problems and advised him that

the sailboat was subject to removal under Fla. Stat. § 823.11 if it was not brought

into compliance with Florida law. Id.

      The August 20 report, written by Officer Roque, stated that Mr. Hoefling’s

sailboat, which was scheduled for “derelict vessel cleanup,” was found “covered

with garbage.” It also indicated that a “red inverter” was found onboard and

“turned into [the] property [department] under the owner[’]s name.” Id. at 10–11.


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      The September 20 report (which identifies Sgt. Gonzalez as the supervising

officer and was written by Officer Macias) contained the following narrative: “On

Friday[,] August 20, 2010[,] Officer Ricardo Roque #27435 observed vessel to still

be in its derelict condition and had it removed from state waters and destroyed by a

city contractor.” Id. at 17.

      The district court “summarily” rejected Mr. Hoefling’s argument that it

should not consider the reports which had been attached to the first amended

complaint but omitted from the second amended complaint. See Hoefling II, 17

F.Supp.3d at 1232 n.6. Accepting as true the narrative in the May 27 report, the

district court again found that Mr. Hoefling had “notice of the derelict condition of

the vessel.” Id. at 1230. See also id. at 1234, 1237–38. The district court thought

Mr. Hoefling was “attempt[ing] to pull the wool over the [c]ourt’s eyes by

disavowing those exhibits” and “declining to attach them” to the second amended

complaint, something the court considered “a transparent attempt to overcome [its]

prior adverse finding.” Id. at 1235 n.11.

      A district court can generally consider exhibits attached to a complaint in

ruling on a motion to dismiss, and if the allegations of the complaint about a

particular exhibit conflict with the contents of the exhibit itself, the exhibit

controls. See, e.g., Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009)

(citing cases). The classic example is when a plaintiff attaches a document to his


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complaint but his allegations about what the document is or says contradict the

document itself. See, e.g., Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812,

813 (5th Cir. 1940) (letter in breach of contract action). But that general principle

does not govern here.

      As a matter of law, the second amended complaint filed by Mr. Hoefling

“supersede[d] the former pleading[s]; the original pleading[s] [were] abandoned by

the amendment, and [were] no longer a part of [Mr. Hoefling’s] averments against

his adversar[ies].” Dresdner Bank AG v. M/V Olympia Voyager, 463 F.3d 1210,

1215 (11th Cir. 2006). So when Mr. Hoefling filed the second amended complaint,

the first amended complaint (and its attached exhibits) became a legal nullity.

      As Dresdner Bank explains, our cases do not permit a district court to

consider, on a motion to dismiss, exhibits attached to an earlier complaint that a

plaintiff has expressly disavowed or rejected as untrue in a subsequent amended

complaint. In Dresdner Bank, for example, we held that, when a plaintiff amends

its original complaint to make clear “it had rejected” a certain contract provision, it

will not be bound by the terms of the contract simply because it had attached the

contract to the original complaint. Id. And “[e]ven if [the] original complaint

could be construed to affirm the proposed contract,” the result would be the same

because the original complaint “was wholly superseded by the amended complaint

which proceeded under a different theory.” Id.


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      Dresden Bank governs here.         In his second amended complaint, Mr.

Hoefling expressly alleged that his sailboat was seaworthy and not derelict, as it

had an intact hull, a mast, an engine, a rudder, working sails (which were stored in

the cabin), and an anchor light.     Those allegations directly conflict with the

assertions in Officer Macia’s May 27 and September 20 reports that the sailboat

did not have a motor, sails, or rudder. Mr. Hoefling also specifically denied in the

second amended complaint that he was given notice on May 27 that his vessel was

derelict and/or at risk of being removed and destroyed. According to the second

amended complaint, Mr. Hoefling was cited that day only for not having a marine

sanitary device and was told to get a better anchor light. And, as the second

amended complaint alleges, the code enforcement notice placed on the side of the

sailboat did not have any violations checked off.

      Mr. Hoefling did allege in his second amended complaint that Officer

Macias gave him an “incorrect opinion” that the sailboat was derelict or at risk of

being derelict, but viewing the allegations as a whole, and drawing reasonable

inferences in Mr. Hoefling’s favor, see, e.g., Urquilla-Diaz v. Kaplan Univ., 780

F.3d 1039, 1054 (11th Cir. 2015), that opinion did not amount to adequate notice

of a violation which made the sailboat subject to removal and destruction under

Florida law. At the very least, the allegations in the second amended complaint

dispute Officer Macias’ May 27 report that the sailboat was in a derelict state.


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Moreover, that complaint does not admit (or give any credence to) the statement in

the August 20 report that the sailboat was found covered with garbage.

      Four months after the district court dismissed Mr. Hoefling’s second

amended complaint, we reviewed a case where a civil rights plaintiff attached

police reports to his complaint in support of one claim, but expressly alleged that

the reports were substantively false with regard to another claim. See Saunders,

766 F.3d at 1270. We held that when a “plaintiff attaches a police report to his

complaint and alleges that it is false, . . . the contents of the report cannot be

considered as true for purposes of ruling on a motion to dismiss.” Id. “Otherwise

officers sued under § 1983 could just attach police reports referenced in a civil

rights complaint to their motions to dismiss and ask courts to consider the contents

of those reports, even if they contradicted the allegations of the complaint.” Id.

We recognize, as we noted earlier, that the district court did not have the benefit of

Saunders when it ruled. But under Dresdner Bank it should not have accepted as

true the contents of the incident reports to find, when ruling on the motion to

dismiss the second amended complaint, that Mr. Hoefling had notice that his

sailboat was derelict or that the vessel was in fact derelict.

      We also reject the defendants’ argument that the doctrine of “judicial

estoppel” prevents Mr. Hoefling from filing a second amended complaint that

rejected the information contained in the reports he attached as exhibits to the


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earlier complaints.    At a minimum, judicial estoppel requires a party’s later

position to be contradictory or “clearly inconsistent” from an earlier one. See New

Hampshire v. Maine, 532 U.S. 742, 750 (2001); Burnes v. Pemco Aeroplex, Inc.,

291 F.3d 1282, 1285 (11th Cir. 2002). From his initial complaint forward, Mr.

Hoefling has always alleged that his sailboat was not abandoned or derelict, and

that the City’s marine patrol officers failed to give him adequate notice prior to its

seizure and destruction. He has never adopted the contents of the incident reports

as true, and therefore it is wrong for the defendants to argue that the second

amended complaint “expressly and implicitly adopted” as true the statements in the

incident reports. See Br. for Appellees at 23. The doctrine of judicial estoppel just

does not apply.

      So, to the extent that the district court dismissed the federal constitutional

claims in Counts I, II, and V, and the maritime claims in Counts III and IV, based

on the contents of the incident reports, it erred. On remand the district court should

assess the sufficiency of the procedural due process, search and seizure, and

takings claims without reliance on the disputed portions of the incident reports. It

should assume, as Mr. Hoefling has alleged, that the sailboat was not derelict, and

that he was never given adequate notice that it was derelict and subject to removal

and destruction.




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                                         III

      We now turn to some of the district court’s claim-specific grounds for

dismissal.

                                          A

      As a municipality, the City cannot be held vicariously liable under § 1983

for constitutional violations committed by its officers. See Monell v. Dep’t of

Social Servs., 436 U.S. 658, 693–94 (1978). Mr. Hoefling must ultimately prove

that the City had a policy, custom, or practice that caused the deprivation. See e.g.,

City of Canton v. Harris, 489 U.S. 378, 385 (1989); Weiland v. Palm Beach

County Sheriff’s Office, 792 F.3d 1313, 1328 (11th Cir. 2015); McDowell v.

Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).

      With respect to the procedural due process claim in Count I and the Fourth

Amendment claim in Count II, the district court concluded that the second

amended complaint was insufficient as to municipal liability because Mr. Hoefling

failed to identify the City official who acted as the final policymaker. See Hoefling

II, 17 F.Supp.3d at 1239. In our view, the district court was mistaken.

      Monell, the Supreme Court has explained, is a “case about responsibility,”

and is meant to limit § 1983 liability to “acts which the municipality has officially

sanctioned or ordered.” Pembaur v. City of Cincinnatti, 475 U.S. 469, 478, 480

(1986).      There are, however, several different ways of establishing municipal


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liability under § 1983. A municipality can be liable for an official policy enacted

by its legislative body (e.g., an ordinance or resolution passed by a city council).

See Monell, 436 U.S. at 661, 694–95; McCusik v. City of Melbourne, 96 F.3d 478,

483 (11th Cir. 1996). Municipal liability may also attach if final policymakers

have acquiesced in a longstanding practice that constitutes the entity’s standard

operating procedure. See Bd. of Cty. Commissioners v. Brown, 520 U.S. 397, 403–

04 (1997); Brown v. City of Ft. Lauderdale, 923 F.2d 1474, 1481 n. 11 (11th Cir.

1991). And a municipality can be held liable “on the basis of ratification when a

subordinate public official makes an unconstitutional decision and when that

decision is then adopted by someone who does have final policymaking authority.”

Matthews v. Columbia County, 294 F.3d 1294, 1297 (11th Cir. 2002). So not all

theories of municipal liability under § 1983 require (or depend on) a single final

policymaker.

      The Supreme Court has spoken of establishing a municipality’s final

policymaker in evidentiary terms. For example, it has said that “proof that a

municipality’s legislative body or authorized decisionmaker has intentionally

deprived a plaintiff of a federal protected right necessarily establishes the

municipality acted culpably.” Brown, 520 U.S. 397 at 405 (emphasis added). We

too have discussed the “evidence” concerning the decision of a final policymaker.

See, e.g., Carter v. City of Melbourne, 731 F.3d 1161, 1167 (11th Cir. 2013);


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Campbell v. Rainbow City, 434 F.3d 1306, 1313 (11th Cir. 2006). Cf. Mandel v.

Doe, 888 F.2d 783, 792–93 (11th Cir. 1989) (“identification of the policymaker

may often involve fact-sensitive inquiries”). We therefore believe that identifying

and proving that a final policymaker acted on behalf of a municipality is “an

evidentiary standard, and not a pleading requirement.” Swierkiewicz v. Sorema,

N.A., 534 U.S. 506, 510 (2002). See Twombly, 550 U.S. at 570 (distinguishing but

not overruling Swierkiewicz on this point). Although Mr. Hoefling may ultimately

have to identify (and provide proof concerning) a single final policymaker in order

to survive summary judgment or prevail at trial, see, e.g., Grech v. Clayton County,

335 F.3d 1326, 1329 (11th Cir. 2003), we do not think that he had to name that

person in his complaint in order to survive a Rule 12(b)(6) motion. All he needed

to do was allege a policy, practice, or custom of the City which caused the seizure

and destruction of his sailboat. And that, as we detail below, he did.

                                           B

      The “touchstone of [a] § 1983 action against a government body is an

allegation that official policy is responsible for a deprivation of civil rights

protected by the Constitution.” Monell, 436 U.S. at 690. Given that a complaint

need only state enough facts to “state a claim for relief that is plausible on its face,”

Twombly, 550 U.S. at 570, we conclude that the second amended complaint




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sufficiently pled a municipal liability claim for the alleged procedural due process

and Fourth Amendment violations.

      In addition to what he pled concerning the seizure and destruction of his own

sailboat, Mr. Hoefling also alleged the following. First, on August 20, 2010, while

out of town, Mr. Hoefling received a call from a friend “notifying him that the

police were taking boats.” And, in fact, on his return, he discovered that his own

sailboat had been “unlawfully seized.” Second, Mr. Hoefling alleged that “local

mariners” told him, and that he was “independently aware, that others have fallen

victim to similar conduct as a result of the City[’s] and [the marine patrol officers’]

failure to adhere to law and appropriate procedures regarding the investigation and

destruction of potentially derelict vessels.” Third, Mr. Hoefling alleged that the

City refers to this “systematic roundup and destruction of ugly boats in its waters”

as a “cleanup” program. Based on these allegations, Mr. Hoefling alleged that the

City had a “policy, custom, and/or practice” of “failing to abide by” the state laws,

regulations, and procedures governing the “investigation and . . . removal of

derelict vessels located in state waters.”       Furthermore, he alleged that the

defendants did “not follow established law and procedures intended to safeguard

against the unlawful destruction of private property[,] . . . instead choosing to

remove and destroy [his] property without due process. In sum, the City and its




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marine patrol officers, “as a matter of policy, custom, and/or practice, ignored [his]

fundamental rights, as well as the fundamental rights of other vessel owners.”

      These are not the sort of “naked allegations” we found wanting in Weiland,

792 F.3d at 1329–30 (brackets and quotation marks deleted). Under Leatherman,

Twombly, and Iqbal, Mr. Hoefling’s allegations were sufficient to state a facially

plausible municipal liability claim because they permit “the reasonable inference

that [the City] is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. See

Hailey v. City of Boston, 657 F.3d 39, 51–52 (1st Cir. 2011) (applying Twombly

and Iqbal and holding that municipal liability claim was sufficiently pled).

      The case cited by the district court, Grech, 335 F.3d at 1329, does not call

for a contrary result, as it was in a summary judgment posture, and at that stage of

a case the plaintiff cannot merely rely on the allegations in his complaint.

Significantly, the defendants cannot point to any post-Leatherman Supreme Court

or circuit cases—and we have not been able to locate any ourselves—holding that

a complaint asserting a § 1983 municipal liability claim must, as a Rule 8(a)

pleading matter, always specifically identify the municipality’s final policymaker

by name.

                                          C

      In our view, Mr. Hoefling also sufficiently stated a claim for an

unconstitutional seizure under the Fourth Amendment. In Soldal v. Cook County,


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506 U.S. 56, 60–61 (1992), the Supreme Court unanimously held that a landlord’s

removal and towing of a mobile home, in violation of state law and with the

assistance of sheriff’s deputies, constituted a seizure under the Fourth Amendment:

“As a result of the state action in this case, the Soldals’ domicile was not only

seized, it was literally carried away, giving new meaning to the term ‘mobile

home.’ We fail to see how being unceremoniously dispossessed of one’s home in

the manner alleged to have occurred here can be viewed as anything but a seizure

involving the protection of the Fourth Amendment.” Id. at 61. In so ruling, the

Supreme Court rejected the notion that “the Fourth Amendment protects against

unreasonable seizures of property only when privacy or liberty is also implicated.”

Id. at 65. Here the defendants’ alleged removal and destruction of Mr. Hoefling’s

sailboat, under the circumstances described in the second amended complaint,

similarly constitutes a seizure under the Fourth Amendment. Mr. Hoefling alleged

that his sailboat was not derelict, that he was not given adequate notice by the City

that it was derelict and therefore subject to removal, and that the vessel was

removed and destroyed by the City pursuant to a systematic “cleanup” program to

get rid of ugly boats.

      The next question, of course, is whether the seizure was constitutionally

reasonable, and that question requires a “careful balancing of governmental and

private interests.” Soldal, 506 U.S. at 71 (internal quotation marks and citation


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omitted). The district court, again relying on the contents of the incident reports,

concluded that Officer Roque and Sgt. Gonzalez were entitled to qualified

immunity on the seizure claim because the sailboat was derelict and because Mr.

Hoefling had been given notice of its derelict state and told to remove the vessel or

bring it into compliance. See Hoefling II, 17 F.Supp.3d at 1230–31, 1233–34. But,

as we have already explained, it was not appropriate to consider the reports for the

truth of the statements contained in them in assessing the sufficiency of Mr.

Hoefling’s second amended complaint.

      The Supreme Court has instructed that, in assessing the two prongs of the

qualified immunity standard at the summary judgment stage, the evidence must be

viewed in the light most favorable to the plaintiff. See Tolan v. Cotton, 134 S.Ct.

1861, 1866 (2014) (reversing grant of qualified immunity because court resolved

factual disputes and inferences against the plaintiff: “Our qualified immunity cases

illustrate the importance of drawing inferences in favor the non-movant, even

when, as here, the court decides only the clearly-established prong of the

standard.”).    The same general principle, of course, applies when qualified

immunity is raised at the motion to dismiss stage. See St. George v. Pinellas Cnty.,

285 F.3d 1334, 1338 (11th Cir. 2002) (explaining that, when “reviewing [a] grant

of qualified immunity by the district court . . . on a Rule 12(b)(6) motion to

dismiss, we must construct our own firewall between the facts pleaded in the


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complaint and any evidence, construing the complaint in favor of the plaintiff[ ]”).

On remand, the district court should address qualified immunity anew, crediting

the factual allegations in the second amended complaint and without reference to

the disputed contents of the incident reports.

                                          D

      We agree with the district court that Mr. Hoefling did not state a substantive

due process claim in his second amended complaint. That claim, therefore, was

properly dismissed.

      The substantive component of the Due Process Clause “protects individual

liberty against certain government actions regardless of the fairness of the

procedures used to implement them.” Collins v. City of Harker Heights, Tex., 503

U.S. 115, 125 (1992) (internal quotation marks and citation omitted). It is “state

conduct [which] can properly be characterized as arbitrary, or conscience

shocking, in a constitutional sense.” Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ.,

229 F.3d 1069, 1074 (11th Cir. 2000) (brackets, internal quotation marks, and

citation omitted). To state a substantive due process claim, a plaintiff must allege

(1) a deprivation of a constitutionally protected interest, and (2) that “the

deprivation was the result of an abuse of governmental power sufficient to raise an

ordinary tort to the stature of a constitutional violation.” Executive 100, Inc. v.

Martin Cnty., 922 F.2d 1536, 1541 (11th Cir. 1991).           “A deprivation is of


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constitutional stature if it is undertaken for improper motive and by means that

were pretextual, arbitrary and capricious, and without rational basis.” Id. See also

Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1379 (11th Cir. 1994)

(same).

      Mr. Hoefling alleges that the City violated his substantive due process rights

because it has a marine patrol “cleanup program” that identifies boats it considers

ugly, and then seizes and destroys those boats without giving their owners notice

or an opportunity to contest their removal or destruction. Although the Supreme

Court in Sodal did not address whether the removal and towing of the mobile home

could give rise to both a Fourth Amendment seizure claim and a Fourteenth

Amendment substantive due process claim, see 560 U.S. at 70, we have since held

that where law enforcement officials unlawfully seize a person’s home, any

constitutional protection that its owner may have comes from the Fourth, and not

the Fourteenth, Amendment. See Tinney v. Shores, 77 F.3d 378, 381 (11th Cir.

1996) (holding that the Supreme Court, in Sodal and other cases, “foreclosed”

substantive due process claims under such circumstances). We are bound by

Tinney, and therefore hold that Mr. Hoefling—who has a Fourth Amendment

seizure claim available to him—cannot also claim a violation of substantive due

process.




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                                         IV

      We think it is best to allow the district court to re-examine the remaining

claims and the qualified immunity issues without a heightened pleading standard

and without accepting as true the contents of the incident reports. Having said that,

we have some suggestions for the district court on remand.

      With respect to the procedural due process claim, the district court should

analyze whether this is one of those situations where the existence of a post-

deprivation remedy is sufficient, as in Tinney, 77 F.3d at 380, or whether Mr.

Hoefling has sufficiently alleged that the destruction of his sailboat was pursuant to

a policy or practice of the City (i.e., the alleged “cleanup” program) such that pre-

deprivation notice was feasible and required under cases like Hudson v. Palmer,

468 U.S. 517, 532 (1984) (explaining that, “where the property deprivation is

effected pursuant to an established state procedure,” a post-deprivation state

remedy cannot satisfy due process), and Rittenhouse v. DeKalb Cnty., 764 F.2d

1451, 1455 (11th Cir. 1985) (holding that the focus on the adequacy of post-

deprivation remedies—due to the random, unauthorized act of an employee—does

not apply “where a deprivation occurs pursuant to an established state procedure,”

because in those circumstances, a “predeprivation process is ordinarily feasible”).

The district court should also consider the impact, if any, of Grayden v. Rhodes,

345 F.3d 1225, 1237–44 (11th Cir. 2003), on the notice issue.


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      As for the federal and state takings claims, the district court should take into

account the Supreme Court’s recent decision in Horne v. Dep’t of Agric., 135 S.

Ct. 2419, 2426 (2015) (“The Government has a categorical duty to pay just

compensation when it takes your car, just as when it takes your home.”). The

district court may also need to address whether the ripeness principle set forth in

Williamson Cnty. Reg’l Planning Com’n v. Hamilton Bank of Johnson City, 473

U.S. 172, 194 (1985), a regulatory takings case, applies to a case involving a

physical taking. A number of circuits have held that a plaintiff alleging a physical

taking must seek compensation through available state remedies before filing suit

under § 1983. See, e.g., Kurtz v. Verizon N.Y., Inc., 758 F.3d 506, 513–14 (2d Cir.

2014); Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 958 (7th Cir. 2004).

      In sum, we affirm the district court’s dismissal of Mr. Hoefling’s substantive

due process claim. We reverse the district court’s dismissal of the other claims and

remand for further proceedings consistent with this opinion.

    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
FOR FURTHER PROCEEDINGS.




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