            Case: 13-13880   Date Filed: 03/28/2014   Page: 1 of 8


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13880
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:12-cv-02557-VMC-MAP



KYLE MCCLAMMA,

                                              Plaintiff - Appellant,

versus

JOSEPHA MICHELLE REMON,
U.S. Senior Probation Officer,

                                              Defendant - Appellee.

                       ________________________

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

                             (March 28, 2014)

Before HULL, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:
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       Kyle McClamma, proceeding pro se, appeals the district court’s dismissal—

on qualified immunity grounds—of his Bivens 1 suit against former U.S. Senior

Probation Officer Josepha Remon. Mr. McClamma alleged that Officer Remon

denied him his rights to property and familial association without due process by

imposing a residency restriction as a condition of Mr. McClamma’s supervised

release. We affirm.

                                               I.

       Mr. McClamma pled guilty in 2006 to one count of possessing child

pornography. 2 Mr. McClamma was placed on bond until sentencing, and was

permitted to reside with his wife and then-newborn daughter.

       The district court later sentenced Mr. McClamma to 36 months in federal

prison, to be followed by a life term of supervised release. The terms of Mr.

McClamma’s supervision did not explicitly include a residency restriction, but

provided that any contact with minors would require the prior written approval of

his probation officer. After being released from prison in April of 2009, Officer



1
  See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Although Mr. McClamma purportedly brought this action under 42 U.S.C. § 1983, his complaint
against Officer Remon, a federal officer, is cognizable under Bivens. See Smith ex rel. Smith v.
Siegelman, 322 F.3d 1290, 1297 n.15 (11th Cir. 2003) (“A Bivens action is analogous to § 1983
suits against state and local officers.”).
2
  We take judicial notice of the documents in Mr. McClamma’s underlying criminal case because
these facts can be accurately and readily determined from the district court’s docket, the
accuracy of which cannot reasonably be questioned. See Fed. R. Evid. 201(b)(2). Many of these
documents were also attached to Mr. McClamma’s complaint. See D.E. 1.
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Remon permitted Mr. McClamma to have supervised contact with his minor

daughter, but did not allow him to reside with her in the same home.

       In November of 2009, Mr. McClamma’s wife filed for dissolution of

marriage. Mr. McClamma argues that his wife had “intended to remain in the

marriage,” and testified during their divorce proceedings that she had expected that

Mr. McClamma would be living with her and their daughter upon his release from

prison. See Appellant’s Br. at 7. 3

       In November of 2009, Mr. McClamma filed a motion for clarification of the

terms of his supervision. In this motion, Mr. McClamma explained that he did not

believe that the district court had intended for the prior-written-approval condition

to impose a residency restriction, particularly because his daughter had been

specifically exempted from the same condition when he was released pending

sentencing. A month later, however, Mr. McClamma moved to withdraw the

motion for clarification because the parties were attempting to resolve the issue.

The district court granted this motion to withdraw.

       In November of 2010, Mr. McClamma filed a second motion for

clarification of his terms of supervised release. In response, the district court

modified Mr. McClamma’s supervision to “permit contact or visitation with [his]

3
  Following his release from prison, Mr. McClamma has continued to challenge his supervised
release conditions, including through a still-pending 28 U.S.C. § 2255 motion to remove the
prior-written-approval condition, and a separate motion for early termination of his supervised
release which was denied by a district court and affirmed by this Court.
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daughter only when supervised by an approved third-party supervisor.” D.E. 52 at

1.

      Mr. McClamma’s allegations against Officer Remon covered only the

seven-month period from his release from prison on April 29, 2009, until the legal

dissolution of his marriage on November 16, 2010. See D.E. 1 at 6. Specifically,

Mr. McClamma alleged that Officer Remon acted “outside the scope of her

authority” by imposing a residency restriction that was not a condition of his

supervised release, thus depriving him of his rights to property and familial

association without due process. See D.E. 1 at 9. Officer Remon argued that Mr.

McClamma’s complaint should be dismissed because (1) she was entitled to

qualified immunity; (2) she was entitled to quasi-absolute immunity; and (3) the

action was barred by Heck v. Humphrey, 512 U.S. 477 (1994), because it implied

the invalidity of the court’s sentence.

      The district court granted the motion to dismiss, finding that qualified

immunity shielded Officer Remon from suit. Specifically, the district court found

that, in interpreting the court-ordered conditions of Mr. McClamma’s supervised

release, Officer Remon was “performing a legitimate job-related function through

means that were within her power to utilize,” and, as such, was exercising her

discretionary authority. See D.E. 25 at 11. The district court further ruled that Mr.

McClamma did not carry his burden of showing that “the rights he claimed


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[Officer] Remon violated were clearly established in similar circumstances,” and,

therefore, was unable to show that qualified immunity should not apply. See id. at

12. The district court did not find it necessary to decide the issue of absolute

immunity or the applicability of Heck.

                                          II.

      We review de novo a district court’s grant of a motion to dismiss under Rule

12(b)(6), “accepting the allegations in the complaint as true and construing them in

the light most favorable to the plaintiff.” Leib v. Hillsborough Cnty. Pub. Transp.

Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009). The facts as pleaded must “state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).4

      Qualified immunity is “an immunity from suit, rather than merely a defense

to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (internal emphasis

omitted). It “protects government officials performing discretionary functions from

suits in their individual capacities unless their conduct violates ‘clearly established

statutory or constitutional rights of which a reasonable person would have

known.’” Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007) (citation

omitted). To be entitled to qualified immunity, a defendant must first establish that

she was acting within the scope of her discretionary authority, meaning the

4
  As Mr. McClamma is proceeding pro se, his pleadings must be liberally construed. See
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
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government employee must have been performing a legitimate job-related

function, or pursuing a job-related goal, through means that were within the

official’s power to utilize. See Mathews v. Crosby, 480 F.3d 1265, 1269 (11th Cir.

2007); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir.

2004). Once the defendant has established that she was acting within her

discretionary authority, “the burden shifts to the plaintiff to show that qualified

immunity is not appropriate,” Mathews, 480 F.3d at 1269, by showing: “(1) the

defendant violated a constitutional right, and (2) this right was clearly established

at the time of the alleged violation.” Holloman, 370 F.3d at 1264. 5

       From the record, it is clear that Officer Remon was acting within her

discretionary authority in interpreting and enforcing the court-ordered conditions

of Mr. McClamma’s supervised release. The burden, therefore, shifts to

Mr. McClamma to show that Officer Remon, in imposing the residency restriction,

violated a clearly established right. In order to demonstrate that a right has been

clearly established, a plaintiff may: (1) show that a materially similar case has

already been decided; (2) identify a “broader, clearly established principle [that]

should control the novel facts [of the] situation”; or (3) argue that the conduct at

issue so obviously violated the constitution that existing case law is unnecessary.

See Loftus v. Clark-Moore, 690 F.3d 1200, 1204-05 (11th Cir. 2012). Because of

5
  We may consider the two prongs of the qualified immunity analysis in any order. See Pearson
v. Callahan, 555 U.S. 223, 236 (2009).
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the unusual circumstances of this case, we look to whether there was a clearly

established principle that should control the facts of this case.

      While certainly an important and well-protected right, the right to

association, and in particular intimate association, is not absolute. See Shahar v.

Bowers, 114 F.3d 1097 (11th Cir. 1997). See also Foy v. Holston, 94 F.3d 1528,

1536-37 (11th Cir. 1996); Robertson v. Hecksel, 420 F.3d 1254, 1256-57 (11th Cir.

2005). In support of his claim, Mr. McClamma cites generally to several Supreme

Court cases upholding the right to intimate association as a fundamental liberty

interest. See Appellant’s Br. at 8 (citing Meyer v. Nebraska, 262 U.S. 390 (1923),

Quilloin v. Walcott, 434 U.S. 246 (1978), and Roberts v. United States Jaycees,

468 U.S. 609 (1984)). There is no case, however, from this Court that even

suggests that a probation officer can be held liable for violating a convicted

defendant’s right to association by interpreting and enforcing court-ordered

conditions of supervised release as part of her official duties.

      In his complaint, Mr. McClamma cited to United States v. Wolf Child, 699

F.3d 1082 (9th Cir. 2012). In that case, the Ninth Circuit held that, because the

fundamental right to familial association is a “particularly significant liberty

interest,” the district court was required to make special findings that a condition

restricting a defendant’s contact with family members was necessary. As reiterated

by the district court, the Wolf Child decision could not have revealed with “obvious


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clarity” to Officer Remon that her conduct would violate federal law because (1) it

was decided in October 2012, long after the challenged conduct here, and (2) Wolf

Child is a statement of law from the Ninth, not the Eleventh, Circuit. See Loftus,

690 F.3d at 1205 (“‘[t]he [controlling] principle must be established with obvious

clarity by. . . case law’”). See also Barnes v. Zaccari, 669 F.3d 1295, 1307 (11th

Cir. 2012) (to determine whether a right is clearly established, “we look to law as

decided by the Supreme Court, the Eleventh Circuit, or the [state’s] Supreme

Court”). Similarly, Mr. McClamma has not cited to any binding precedent that

suggests a defendant’s right to property is violated by conditions of supervised

release that prevent him from living in his home. See Appellant’s Br. at 8.

Accordingly, Mr. McClamma has not met his burden of showing that Officer

Remon violated a clearly established right, and, therefore, has not shown that

qualified immunity is inappropriate in this circumstance.

                                           III.

      Because Officer Remon was acting within her discretionary authority as a

U.S. Senior Probation Officer and did not violate a clearly established

constitutional or statutory right by enforcing the prior-written-approval condition

of Mr. McClamma’s supervised release through a residency restriction, we affirm

the district court’s order of dismissal.

AFFIRMED.


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