PETERKA

v.

DIXON

This Court has considered, without hearing, the Magistrate Judge’s Report and Recommendation, ECF No. 20, and has also reviewed de novo Plaintiff’s objections, ECF No. 21. As the Magistrate Judge explained in his well-reasoned Report and Recommendation, both of Plaintiff’s individual-capacity claims against Defendant are due to be dismissed. For Plaintiff’s Takings Clause claim, he must allege facts showing that Defendant took his property for a public use. See Brown v. Legal Found. of Washington, 538 U.S. 216, 231 (2003). Here, Plaintiff does not allege any facts that Defendant took his tablet for a public purpose. He concedes this point in his response to Defendant’s motion to dismiss, ECF No. 19 at 4–5, and he does not object to the Report and Recommendation on this basis. Accordingly, this claim is due to be dismissed without prejudice.¹

Plaintiff’s individual-capacity substantive due process claim also fails. While Plaintiff alleges sufficient facts for a plausible substantive due process claim, see ECF No. 20 at 16, qualified immunity bars his claim. “Once it has been determined that an official was acting within the scope of his discretionary authority, the burden shifts to the plaintiff to establish that qualified immunity is inappropriate.” Garcia v. Casey, 75 F. 4th 1176, 1185 (11th Cir. 2023) (internal quotation omitted).² In addition to showing a violation of a constitutional right, the plaintiff must demonstrate that the right was clearly established at the time of the misconduct.” Id. “ ‘Clearly established’ means that, at the time of the officer's conduct, the law was

First, “materially similar” case law may give an officer fair notice that his conduct would violate a constitutional right. Mercado v. City of Orlando, 407 F. 3d 1152, 1159 (11th Cir. 2005). Second, the plaintiff can show the existence of a “broader, clearly established principle [that] should control the novel facts [of his] situation.” Id. In other words, even “[i]f there is no case law directly on point, general statements of the law contained within the Constitution, statute, or caselaw may sometimes provide ‘fair warning’ of unlawful conduct.” Id. (quotation omitted and alteration adopted). Finally, in rare instances, an official may still have notice when his conduct “so obviously violates” a constitutional right.

Garcia, 75 F. 4th 1176, 1185 (11th Cir. 2023). Here, Plaintiff fails to demonstrate that his substantive due process right to retain a tablet was clearly established. As noted in the Report and Recommendation, Plaintiff failed to identify—and the Magistrate Judge’s own review did not reveal— a similar case or clearly established principle sufficient to put Defendant on notice that his conduct was unlawful. ECF No. 20 at 17. In his objections, Plaintiff argues that Hudson v. Palmer, 468 U.S. 517 (1984) clearly establishes the broad principle that “an authorized, intentional deprivation of property like the one at issue here is actionable pursuant to the Due Process Clause.” ECF No. 21 at 6. The Supreme Court’s holding in Hudson, however, is more nuanced. In Hudson, the Supreme Court did not address a substantive due process claim—it addressed a procedural due process claim. Specifically, the Supreme Court in Hudson held “that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” 468 U.S. at 533. Hudson’s holding on a procedural due process claim cannot clearly establish a broad principle that would have put Defendant here on notice that his conduct qualified as a substantive due process violation. Plaintiff also points to several materially similar district court decisions that he claims should have put Defendant on notice, ECF No. 21 at 8, but these cases are insufficient. To determine if a materially similar case should have put a defendant on notice, this Court looks “only to binding precedent at the time of the challenged conduct—that is, ‘the decisions of the Supreme Court, the Eleventh Circuit, or the highest court of the state.’ ” Echols v. Lawton, 913 F. 3d 1313, 1324 (11th Cir. 2019) (quoting Bailey v. Wheeler, 843 F. 3d 473, 483 (11th Cir. 2016)). The district court decisions that Plaintiff cites are not binding precedent and thus, cannot serve to put Defendant on notice. Accordingly, Plaintiff’s substantive due process claim against Defendant in his individual capacity for damages—that is, both nominal³ and compensatory damages—is due to be dismissed with prejudice.⁴

Department of Corrections), Eleventh Amendment immunity would prohibit such backward-looking relief. See Jones v. Buckner, 963 F. Supp. 2d 1267, 1283 (N.D. Ala. 2013) (“Although Ex parte Young allows declaratory relief, it does not apply when the declaratory relief pertains only to past violations of federal law.” (citing Green v. Mansour, 474 U.S. 64, 73 (1985)). Accordingly, Plaintiff’s substantive due process claim is due to be dismissed without prejudice,⁶ and Defendant’s motion to dismiss is due to be granted.

over Plaintiff’s objections, as this Court’s opinion. 2. Defendant’s motion to dismiss, ECF No. 17 is GRANTED. 3. The Clerk shall enter judgment stating, “Plaintiff’s complaint, ECF No. 1,

is DISMISSED. Specifically, Plaintiff’s Takings Clause claim against Defendant in his individual capacity (Count I) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. Plaintiff’s substantive due process claim against Defendant in his

individual capacity (Count II) for nominal and compensatory damages is DISMISSED with prejudice as barred by qualified immunity. Plaintiff’s substantive due process claim against Defendant in his individual capacity

(Count II) for declaratory relief is DISMISSED without prejudice for lack of subject matter jurisdiction.” with the futility of this amendment, however, the dismissal of Plaintiff’s substantive due process claim must be without prejudice because it is based in part on Eleventh Amendment immunity— which is jurisdictional. See McClendon v. Georgia Dep’t of Cmty. Health, 261 F. 3d 1252, 1256 (11th Cir. 2001) (“[F]ederal courts lack jurisdiction to entertain claims that are barred by the Eleventh Amendment.”).

4. The Clerk shall close the file.

SO ORDERED on November¹, 2023.

s/Mark E. Walker ____ Chief United States District Judge