            Case: 18-11887     Date Filed: 07/30/2019   Page: 1 of 10


                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 18-11887
                          Non-Argument Calendar
                        ________________________

                  D.C. Docket No. 4:16-cv-00105-MW-CAS



MARK ERIC OSTERBACK,

                                                              Plaintiff - Appellant,

                                    versus

RICK SCOTT,
CELESTE PHILIP,
MD Florida Attorney General,

                                                          Defendants - Appellees,

FLORIDA DEPARTMENT OF CORRECTIONS SECRETARY, et al.,

                                                                        Defendants.

                        ________________________

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

                                 (July 30, 2019)
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Before ROSENBAUM, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

      Appellant Mark Osterback, a state prisoner, appeals pro se the district court’s

order dismissing his claim for declaratory and injunctive relief against the Governor

of Florida. As relevant to this appeal, Osterback alleged that Fla. Stat. § 120.81(3),

which restricts prisoners’ ability to challenge state agency action through an

administrative process, violates the First Amendment, Due Process Clause, and

Equal Protection Clause of the United States Constitution, as well as sections of the

Florida State Constitution. The Governor moved to dismiss on the basis that, under

Ex Parte Young, 209 U.S. 123 (1908), he was not a proper defendant. The district

court adopted the magistrate judge’s recommendation that the Governor’s motion be

granted and dismissed the case. After careful review, we affirm.

                                          I.

      Florida State Agencies, such as the Florida Department of Corrections, must

comply with the Florida Administrative Procedure Act (“FAPA”), Fla. Stat. §§

120.50-120.81. Under that law, any person “substantially affected” by an agency’s

rule or proposed rule “may seek an administrative determination” of its validity by

filing a petition with the Florida Division of Administrative Hearings (“DAH”). Fla.

Stat. § 120.56(1)(a). After an administrative law judge determines the validity of

the challenged agency action, the petitioner may seek further review in Florida state


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court. Fla. Stat. § 120.68. However, the FAPA specifically provides that prisoners

“are not eligible to seek an administrative determination of an agency statement”

under § 120.56, and “may not seek judicial review” under § 120.68. Fla. Stat. §

120.81(3)(a). The FAPA further specifies that prisoners “may be limited by the

Department of Corrections to an opportunity to present evidence and argument on

issues under consideration by submission of written statements concerning intended

action on any department rule.” Fla. Stat. § 120.81(3)(b).

      The DAH is itself a state agency and is led by a director who acts as the chief

administrative law judge of the state and as the division’s “head for all purposes.”

Fla. Stat. § 120.65(1). As the leader of the DAH, the director is “statutorily

responsible for final agency action.” Id. The Florida Administration Commission,

which is composed of the Governor and his cabinet, appoints the director of the

DAH, who must be confirmed by the senate. Fla. Stat. §§ 14.202, 120.65(1). Under

Florida law, the Governor’s actions are considered agency action when he is “acting

pursuant to powers other than those derived from the constitution.” Fla. Stat. §

120.52(1)(a).

                                         II.

      Count 1 of Osterback’s third amended complaint, which he brought under 42

U.S.C. § 1983, alleged that Fla. Stat. § 12.81(3), the provision of the FAPA

preventing prisoners from administratively challenging agency rules, violated the


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First Amendment, Due Process Clause, and Equal Protection Clause of the United

States Constitution, as well as sections of the Florida State Constitution. 1 According

to Osterback, prisoners can still challenge agency action by seeking declaratory

relief in state court, but that process is more burdensome than seeking administrative

review.

      The Governor moved to dismiss on the basis that he was not the official

charged with enforcing the challenged provision and was therefore not a proper

defendant. Osterback responded that the Governor was sufficiently connected with

enforcement of the challenged provision because the Governor had a general

responsibility to enforce the law, served as the chair of the Administration

Commission, and appointed the other members of the Administration Commission,

which made him responsible for appointing the director of the DAH and adopting

the DAH rules of procedure.

      The district court referred the Governor’s motion to dismiss to a magistrate

judge, who recommended that the court grant it because the Governor was not the

proper defendant. The magistrate judge observed that the Governor “le[d] the

executive branch of government to which the [F]APA is applicable” and “chair[ed]

the Administrative Commission which, in turn, appoints the Director of the

Department of Administrative Hearings.” But, the magistrate judge concluded,


      1
          Osterback does not appeal the district court’s dismissal of Count 2 of his complaint.
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Osterback had not cited a statute that “directs the Governor’s involvement in, or

enforcement of,” the challenged provision. Osterback filed objections to the Report

and Recommendation, criticizing the magistrate judge for not specifically addressing

his argument that the Governor was a proper defendant because the Governor was

included in the definition of “agency” and because his case was “very similar” to

this Court’s decision in Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988), while it

was “dissimilar” to the decision in Women’s Emergency Network v. Bush, 323 F.3d

937 (11th Cir. 2003), upon which the magistrate judge’s recommendation relied.

      The district court overruled Osterback’s objections, adopted the Report and

Recommendation, and dismissed the case. Osterback moved for rehearing and

asserted that the district court had allowed him to name the Governor as the

defendant in a prior case. The district court denied the motion.

      This appeal followed.

                                        III.

      We review de novo a district court’s dismissal for failure to state a claim,

accepting the factual allegations in the complaint as true and construing them in the

light most favorable to the plaintiff. Quality Auto Painting Ctr. of Roselle, Inc. v.

State Farm Indem. Co., 917 F.3d 1249, 1260 (11th Cir. 2019) (en banc). We

construe complaints prepared by a pro se litigant more liberally than those drafted

by an attorney. Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008). But


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“conclusory allegations, unwarranted deductions of facts or legal conclusions

masquerading as facts will not prevent dismissal.” Wiersum v. U.S. Bank, N.A., 785

F.3d 483, 485 (11th Cir. 2015).

                                          IV.

      On appeal, Osterback contends that the Governor was a proper defendant

under Ex Parte Young and that the district court should not have dismissed his

complaint. We affirm.

      The Eleventh Amendment provides that “[t]he Judicial power of the United

States shall not be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.” Under that Amendment, “a state may

not be sued in federal court unless it waives its sovereign immunity or its immunity

is abrogated by an act of Congress under section 5 of the Fourteenth Amendment.”

Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011) (citing Kimel v. Florida Bd.

of Regents, 528 U.S. 62 (2000)).

      Under the doctrine set forth in Ex Parte Young, 209 U.S. 123 (1908), however,

“a suit alleging a violation of the federal constitution against a state official in his

official capacity for injunctive relief on a prospective basis is not a suit against the

state, and, accordingly, does not violate the Eleventh Amendment.” Grizzle, 634

F.3d at 1319 (citing Frew v. Hawkins, 540 U.S. 431, 437 (2004)). That doctrine has


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been described as a legal “fiction” because it “creates an imaginary distinction

between the state and its officers, deeming the officers to act without the state’s

authority, and, hence, without immunity protection, when they enforce state laws in

derogation of the Constitution.” Summit Medical Assocs., P.C. v. Pryor, 180 F.3d

1326, 1336-37 (11th Cir. 1999).

      Under Ex Parte Young, a litigant must bring his case “against the state official

or agency responsible for enforcing the allegedly unconstitutional scheme.” ACLU

v. The Florida Bar, 999 F.2d 1486, 1490 (11th Cir. 1993). As we have previously

explained, “a state officer, in order to be an appropriate defendant, must, at a

minimum, have some connection with the enforcement of the provision at issue.”

Socialist Workers Party v. Leahy, 145 F.3d 1240, 1248 (11th Cir. 1998). “Unless

the state officer has some responsibility to enforce the statute or provision at issue,

the ‘fiction’ of Ex parte Young cannot operate.” Summit Medical Assocs., 180 F.3d

at 1341. Where the named defendant lacks any responsibility to enforce the statute

at issue, “the state is, in fact, the real party in interest,” and the suit remains

prohibited by the Eleventh Amendment. Id.

      Here, the district court correctly concluded that the Governor was not

sufficiently connected with the challenged provision in order to be a proper

defendant under Ex Parte Young. Contrary to Osterback’s argument on appeal, the




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Governor’s constitutional and statutory authority to enforce the law and oversee the

executive branch do not make him a proper defendant under Ex Parte Young.

      As we have noted, the Governor serves as the chair of the Administrative

Commission and, along with members of his cabinet, appoints the director of the

DAH. See Fla. Stat. §§ 14.202, 120.65(1). And, under Fla. Stat § 120.52(1)(a), the

FAPA defines the Governor himself as an agency when he acts under his

nonconstitutional authority. But even where the Governor takes agency action

pursuant to his nonconstitutional authority, it remains the responsibility of the

director of the DAH to enforce the challenged provision and preclude prisoners from

petitioning the agency for an administrative determination of that action’s validity.

Fla. Stat. § 120.65(1) (making the director “statutorily responsible for final agency

action”). The Governor’s general authority to enforce Florida’s laws and his shared

responsibility for appointing the director of the DAH do not make the Governor a

proper party because, as we have held, a governor’s general executive authority, or

even partial responsibility for administering a challenged statute, is insufficient to

make the governor a proper party under Ex Parte Young. See, e.g., Women’s

Emergency Network, 323 F.3d at 957-58.

      Osterback’s second argument—that the district court erroneously analogized

his case to Women’s Emergency Network instead of Luckey v. Harris—is no more

persuasive. In Women’s Emergency Network, we held that the Governor’s “shared


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authority” over the Department of Highway and Safety and Motor Vehicles was “too

attenuated” to establish that the Governor was responsible for that agency’s actions.

323 F.3d at 949. In Luckey, by contrast, we noted that the Governor had the authority

to “commence criminal prosecutions” and “to direct the Attorney General” to do the

same, which we held was a sufficient connection to Georgia’s alleged systemic

deficiencies in providing indigent defendants with a defense to make the Governor

a proper defendant. 860 F.3d at 1015-16. Here, unlike in Luckey, the Governor does

not have authority to enforce the challenged provision. Rather, as in Women’s

Emergency Network, the Governor shares the responsibility to appoint the director

of the DAH who, as the chief administrative law judge, enforces the challenged

provision. The Governor’s shared responsibility to appoint the director of the DAH

is “too attenuated” to make him a proper defendant. Women’s Emergency Network,

323 F.3d at 949.

      Osterback’s final argument is that the district court’s decision was

inconsistent with its decision in a prior case in which it allowed the Governor to

remain a defendant under what Osterback says were similar circumstances.

Whatever the circumstances of that case, we are not bound by the district court’s

decision in that instance. And that court’s decision in another case does not change

our conclusion here that, as the magistrate judge correctly determined, the cited




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statutes do not establish that the Governor was responsible for enforcing the

challenged provision such that he is a proper defendant under Ex Parte Young.

      AFFIRMED.




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