[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12987

Non-Argument Calendar

____________________

DIYONNE L. MCGRAW, 

Plaintiff-Appellant,

versus

KHANH-LIEN ROBERTS BANKO, 

SELDON J CHILDERS, 

CHILDERS LAW, LLC, 

RON DESANTIS, 

In his Individual Capacity and Official

Capacity as Governor of Florida,

Defendants-Appellees.

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____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 1:21-cv-00163-AW-MAF

____________________

Before NEWSOM, GRANT, and BRASHER, Circuit Judges.

PER CURIAM:

Diyonne McGraw won an election for a school board seat

for District Two in Alachua County, Florida. But McGraw had a 

problem: The local media discovered that she did not actually live 

in that district, even though a county official had told her otherwise. So McGraw’s opponent in the primary election, Khanh-Lien 

Roberts Banko, hired an attorney, Seldon Childers, to file an emergency declaratory judgment action against McGraw in state court. 

Banko alleged that McGraw’s seat was technically vacant under 

Florida law, which requires that public officials live in the districts 

they represent. The state court denied Banko’s emergency motion 

for relief but suggested that Banko was likely to succeed on the 

merits. Childers forwarded that order to Governor DeSantis’s office, and Banko also wrote to the Governor.

In response, Governor DeSantis issued Executive Order 21-

147. The Executive Order explained that, because he concluded 

that McGraw failed to maintain residency in District Two, her seat 

was vacant as a matter of law. McGraw filed a petition for a writ of 

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quo warranto against Governor DeSantis in state court, which the 

court denied. McGraw appealed that order.

McGraw then filed this action. In the operative complaint, 

McGraw alleges that Governor DeSantis, Banko, Childers, and 

Childers’s law firm conspired to infringe her “fundamental right”

under the Due Process Clause of the Fourteenth Amendment to 

“vote and have her vote counted.” She sought compensatory damages and injunctive relief. The defendants separately moved to dismiss the second amended complaint.

The district court dismissed each of McGraw’s claims—

some on justiciability grounds, the rest on the merits. Banko appealed.

After appealing, McGraw ran for election in a newly drawn 

District Two and won, which mooted the state court appeal of her 

petition for a writ of quo warranto. Likewise, McGraw concedes 

that her requests for injunctive relief in this case are moot because 

she currently serves on Alachua County’s school board. So we consider only her claims for damages in this appeal.

We review de novo a district court’s order granting a Rule 

12(b)(6) motion to dismiss, accepting the allegations in the complaint as true and construing them in the light most favorable to 

the plaintiff. Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288

(11th Cir. 2010). To survive a motion to dismiss, a complaint must 

“state a claim to relief that is plausible on its face,” meaning it must 

contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

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alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

McGraw contends that Governor DeSantis and by extension 

the other defendants1 violated her substantive due process right “to 

vote and have her vote counted.” By removing her from office, her

theory goes, Governor DeSantis “disenfranchised her and her voters.” As for McGraw’s only remaining claim for damages, the Governor argues that he is protected by qualified immunity because his 

actions did not violate clearly established law. We agree.

The Due Process Clause of the Fourteenth Amendment 

“guarantee[s] some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’” 

Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022) 

(quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). Courts 

rarely recognize new substantive due process rights. Collins v. City 

of Harker Heights, 503 U.S. 115, 125 (1992) (“[T]he Court has always 

been reluctant to expand the concept of substantive due process 

because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.”). A plaintiff may bring an 

action under Section 1983 for violations of substantive due process 

rights, see Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013), 

1 The other defendants argue that they are not state actors for the purposes of 

this constitutional claim. We will assume without deciding that they are.

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but a plaintiff cannot prevail unless the Due Process Clause protects the right invoked.

For its part, qualified immunity shields state officials from 

liability for money damages in their individual capacity unless a 

plaintiff pleads facts showing “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al–Kidd, 

563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 

818 (1982)). “‘Clearly established’ means that, at the time of the officer’s conduct, the law was sufficiently clear that every reasonable 

official would understand that what he is doing is unlawful.” District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 589 (2018) 

(quoting Ashcroft v. al–Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179 

L.Ed.2d 1149 (2011)) (internal quotation marks omitted).

McGraw cannot prove the existence of a clearly established 

substantive due process right on which she may base her claim.

McGraw relies on a single, inapposite decision from the former

Fifth Circuit. See Duncan v. Poythress, 657 F.2d 691, 703-04 (5th Cir. 

Unit B Sept. 1981). There, the court held that public officials disenfranchise the electorate when they fill by appointment an office 

that state law mandates filling by election. This case has little in 

common with Duncan. There, state officials deprived voters of an 

election to fill a public office where state law required one. Id. Here, 

voters voted and elected McGraw. But Governor DeSantis determined the seat to which McGraw was “elected” was vacant under 

state law because he determined that she did not reside in the 

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district. Put differently, voters exercised their right to vote. But 

they elected someone who another state official determined was 

ineligible to hold the position under state law. We cannot say that 

the Governor’s actions violated a clearly established constitutional 

right such that he (or the other defendants) may be held liable for 

damages.

For these reasons, the district court is AFFIRMED.

McGraw’s motions for sanctions are DENIED.

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