FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 5, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-13170

Non-Argument Calendar

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D. C. Docket No. 07-00228-CV-FTM-29-SPC

JORG BUSSE,

Plaintiff-Appellant,

KENNETH M. ROESCH, JR., et al.,

Plaintiffs,

versus

LEE COUNTY, FLORIDA,

BOARD OF LEE COUNTY COMMISSIONERS,

THE LEE COUNTY PROPERTY APPRAISER,

STATE OF FLORIDA, BOARD OF TRUSTEES OF THE

INTERNAL IMPROVEMENT TRUST FUND,

KENNETH M. WILKINSON, et al.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(March 5, 2009)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Jorg Busse, proceeding pro se, appeals the district court’s dismissal of his

third amended complaint in his civil rights action against various state and local

governmental entities and officials in Florida, pursuant to 42 U.S.C. §§ 1983 and

1985. The district court dismissed Busse’s federal claims because he had either

failed to adequately plead them or had not established federal subject matter

jurisdiction. In the absence of any viable federal claims, the court declined to

retain jurisdiction over Busse’s state law claims. Based on our review of the

record and the parties’ briefs, we AFFIRM the dismissal.

I. BACKGROUND

On 10 December 1969, the Board of Commissioners of Lee County, Florida

(“the Board”) adopted a resolution claiming certain lands in the Cayo Costa

subdivision as public lands (“the Resolution”). R10-288 at 9. In the Resolution,

the Board identified the relevant lands by reference to a map of the subdivision

which showed that, along with a number of designated land parcels in the

subdivision, there were also a number of unidentified areas on the eastern and

western edges of the subdivision. Id. The Board laid claim to all of these nondesignated parcels “and accretions thereto for the use and benefit of the public for

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public purposes.” Id.

Busse asserts that he currently owns Lot 15A of the Cayo Costa subdivision

along with all accretions thereto and that the Resolution violates his property rights

under both federal and state law. Id. at 1. To vindicate his rights, he brought suit

in the United States District Court for the Middle District of Florida against an

array of state and local parties, including the Lee County Board of Commissioners,

the county property appraiser, and the Florida Department of Environmental

Protection. Id. In his third amended complaint, Busse made six claims:

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unconstitutional deprivation under 42 U.S.C. § 1983; unconstitutional temporary

takings; trespass; conspiracy, fraud, and malfeasance regarding the designation of

certain unplatted lots; conspiracy to materially misrepresent and defraud; and

oppression or slander of title. Id. at 3–8. He asserted that an array of statutory and

constitutional provisions supported the exercise of jurisdiction: two civil rights acts

— 42 U.S.C. § 1983 and 28 U.S.C. § 1343; Articles Three and Four and the Due

Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments of

the United States Constitution; the 1899 Rivers and Harbors Appropriation Act (33

 The full list of defendants includes: Lee County, Florida; the Board of Lee County 1

Commissioners, in their official and private capacities; Kenneth M. Wilkinson, the Lee County

property appraiser, in his official and private capacity; the State of Florida Board of Trustees of

the Internal Improvement Trust Fund of the State of Florida, in their official and private

capacities; the Florida Department of Environmental Protection, the Florida Division of

Recreation and Parks, and the Cayo Costa State Park staff, in their individual and private

capacities; and Jack N. Peterson, Lee County Attorney, in his official and private capacity. Id. 

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U.S.C. § 403); the 1862 Homestead Act, the federal common law doctrine of

accretion and erosion; the Federal Appraisal Standards, Uniform Standards of

Professional Appraisal Practice, and 12 U.S.C. §§ 3331–3351; and the Federal

Declaratory Judgment Act (28 U.S.C. § 2201). Id. at 2–3.

The defendants subsequently filed separate motions to dismiss Busse’s third

amended complaint, primarily based on lack of subject matter jurisdiction and

failure to state a claim. R10-285, 291, 303, 304. The district court granted these

motions and dismissed Busse’s third amended complaint. R11-338. In so doing,

the court first found that Busse had made out a valid takings claim but that it had

no jurisdiction over that claim since he had failed to show that he had pursued all

available state remedies before bringing suit. Id. at 7–10. The court then

concluded that Busse had not made out a valid claim under any of his other alleged

federal bases. Id. at 10–15. Given that the court did not have jurisdiction over any

of Busse’s federal claims, it chose to dismiss his state law claims. Id. at 15. Busse

now appeals the dismissal of all of the claims in his third amended complaint.

II. DISCUSSION

We review de novo a district court’s legal conclusions regarding subject

matter jurisdiction, including the determinations that a claim is not ripe or that the

court lacks subject matter jurisdiction over it. See Lanfear v. Home Depot, Inc.,

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536 F.3d 1217, 1221 (11th Cir. 2008); Elend v. Basham, 471 F.3d 1199, 1204

(11th Cir. 2006). We also “review a grant of a motion to dismiss for failure to state

a claim de novo, accepting the allegations in the complaint as true and construing

them in the light most favorable to the plaintiff.” Gandara v. Bennett, 528 F.3d

823, 826 (quotation marks and citation omitted). The decision not to exercise

supplemental jurisdiction over a state law claim is reviewed for abuse of discretion.

See Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 738 (11th Cir. 2006).

Since Busse is proceeding pro se, we construe his pleadings liberally. See Miller

v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).

On appeal, Busse argues that the district court erred in dismissing his federal

claims. He asserts that his Takings Clause claim was ripe for review and that he

had properly stated claims involving violations of his procedural due process,

equal protection, and substantive due process rights under the Fifth and Fourteenth

Amendments. Additionally, we read Busse’s brief liberally to argue that the

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 Busse’s brief on appeal does not discuss the other jurisdictional bases cited in his third 2

amended complaint — Articles Three and Four of the United States Constitution; the 1899

Rivers and Harbors Appropriation Act; the 1862 Homestead Act; the federal common law

doctrine of accretion and erosion; the Federal Appraisal Standards, Uniform Standards of

Professional Appraisal Practice, and 12 U.S.C. §§ 3331–3351; and the Federal Declaratory

Judgment Act. Generally arguments not raised in a brief on appeal are deemed abandoned. See

Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002). Furthermore, we agree with the

district court’s analysis of these provisions and find that none of them could serve as a potential

jurisdictional basis for Busse’s claims. See, e.g., Arthur v. Haley, 248 F.3d 1302, 1303 n.1 (11th

Cir. 2001) (per curiam) (noting that appellate courts can and should sua sponte inquire into

subject matter jurisdiction whenever it appears to be lacking).

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district court abused its discretion in refusing to exercise supplemental jurisdiction

over his state law claims. We address these arguments in turn.

A. Takings Clause Claims

Busse contends that the Resolution constituted an unconstitutional taking of

his property rights in Lot 15A. The Fifth Amendment prohibits the taking of

private property “for public use, without just compensation” — a condition made

applicable to the States by the Fourteenth Amendment. U.S. Const. amend. V;

Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S. Ct. 2448, 2457 (2001)

(noting that the Fourteenth Amendment made the Takings Clause applicable to the

States). A plaintiff can bring a federal takings claim only if he can show that he

did not receive just compensation in return for the taking of his property. See Eide

v. Sarasota County, 908 F.2d 716, 720 (11th Cir. 1990). As a result, for a takings

claim to be ripe, a plaintiff must demonstrate that he unsuccessfully “pursued the

available state procedures to obtain just compensation” before bringing his federal

claim. Id. at 721.

In this case, Busse’s claim would not be ripe because he has not shown that

he attempted to obtain or secure relief under established Florida procedures. Since

at least 1990, Florida courts have recognized that an inverse-condemnation remedy

is available for alleged takings violations. See Reahard v. Lee County, 30 F.3d

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1412, 1417 (11th Cir. 1994). Busse contends that his claim would still be ripe

since that remedy was unavailable in 1969 when the Board of Commissioners

enacted the Resolution. However, our past circuit precedent dictates “that a

Florida property owner must pursue a reverse condemnation remedy in state court

before his federal takings claim will be ripe, even where that remedy was

recognized after the alleged taking occurred.” Id. Accordingly, regardless of

whether Busse has a valid property interest in Lot 15A, because he has not alleged

that he sought and was denied compensation through available state procedures, his

Takings Clause claim would not be ripe for review. We thus conclude that the

district court did not err in finding that it lacked subject matter jurisdiction over

Busse’s Takings Clause claim.

B. Procedural Due Process Claims

Busse asserts that his procedural due process rights were violated since Lee

County had no authority to take his land nor jurisdiction over it and because the

Resolution was improperly executed. The Fourteenth Amendment provides that no

state shall “deprive any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1. A plaintiff could make a procedural due

process claim by challenging the procedures by which a regulation was adopted,

including the failure to provide pre-deprivation notice and hearing. See Villas of

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Lake Jackson, Ltd. v. Leon County, 121 F.3d 610, 615 (11th Cir. 1997); Zipperer

v. City of Fort Myers, 41 F.3d 619, 623 (11th Cir. 1995). For such a claim to be

valid, however, the plaintiff would have to allege that state law failed to provide

him with an adequate post-deprivation remedy. See Tinney v. Shores, 77 F.3d 378,

382 (11th Cir. 1996) (per curiam).

Based on these standards, we find that Busse has failed to state a valid

procedural due process claim. Florida provides him an adequate post-deprivation

remedy, inverse condemnation, and he makes no argument that this procedure is

inadequate. Even if it was inadequate, though, Busse still would not have a valid

procedural due process claim. The Resolution constituted a legislative act since it

was a general provision that affected a large number of persons and area, 200 acres

in all, rather than being specifically targeted at Busse or his immediate neighbors.

See 75 Acres, LLC v. Miami-Dade County, Fla., 338 F.3d 1288, 1294 (11th Cir.

2003). Since alleged problems with the adoption of such acts cannot serve as the

basis for a procedural due process claim, Busse could not cite them as the basis for

his claim. See id. (noting that “if government action is viewed as legislative in

nature, property owners generally are not entitled to procedural due process”).

Accordingly, we find that the district court did not err in dismissing Busse’s

procedural due process claims.

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C. Equal Protection Claims

Busse also argues that his equal protection rights were violated because the

Board, in adopting the Resolution, treated differently privately-owned property and

state-owned property. The Fourteenth Amendment forbids states from “deny[ing]

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to any person within its jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1. “[T]o properly plead an equal protection claim, a plaintiff need

only allege that through state action, similarly situated persons have been treated

disparately.” Thigpen v. Bibb County, 223 F.3d 1231, 1237 (11th Cir. 2000)

abrogated on other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 122 S. Ct. 2061 (2002).

Under Florida law, counties can exercise eminent domain over any land that

is not owned by the state or federal government. See Fla. Stat. § 127.01(1)(a)

(2006). Since a state landowner would not be subject to the eminent domain power

but Busse, as a private landowner, would be, Busse could not be similarly situated

to a state landowner. Busse therefore cannot rely on his disparate eminent domain

treatment vis-a-vis state landowners as the basis for an equal protection claim.

 In his brief on appeal, Busse argues that he experienced different treatment than other 3

landowners in Lee County. However, we need not address this argument since he did not

mention this in his third amended complaint and we find that none of the exceptions that would

allow us to consider an issue not raised before the district court would apply here. See Narey v.

Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994) (discussing the exceptions to this general rule).

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Since Busse made no other allegations of disparity in his third amended complaint,

we find that he has failed to plead a valid equal protection claim and that the

district court correctly dismissed this claim.

D. Substantive Due Process Claim

Busse also appears to allege that the Resolution denied him his substantive

due process property rights. Substantive due process protects only those rights that

are “fundamental,” a description that applies only to those rights created by the

United States Constitution. See Greenbriar Village, L.L.C. v. Mountain Brook,

City, 345 F.3d 1258, 1262 (11th Cir. 2003) (per curiam). Property rights would

not be fundamental rights since they are based on state law. See id. Busse thus

could not bring a viable substantive due process claim based on the alleged denial

of a state-defined property right. See id. Accordingly, we find that the district

court properly dismissed his substantive due process claims.

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E. Supplemental Jurisdiction

Busse also contends that the court abused its discretion in not hearing his

pendent state law claims. “The decision to exercise supplemental jurisdiction over

 The district court, in addressing Busse’s substantive due process claim, mentions that 4

assertions of irrational and arbitrary government action could not serve as the basis for such a

claim. Even under a liberal reading of Busse’s complaint, though, we do not think he made such

allegations. In the third amended complaint, he discusses takings violations and procedural

problems with the enactment of the Resolution but never questions the rationale for its passage. 

Accordingly, we need not address whether he has a valid substantive due process claim based on

arbitrary and capricious government action. 

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pendent state claims rests within the discretion of the district court.” Raney v.

Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th Cir. 2004) (per curiam). Since the

district court “had dismissed all claims over which it has original jurisdiction,” it

therefore had the discretion not to exercise supplemental jurisdiction over Busse’s

state law claims. 28 U.S.C. § 1367(c)(3). Furthermore, we expressly encourage

district courts to take such action when all federal claims have been dismissed pretrial. See Raney, 370 F.3d at 1089. Accordingly, the district court did not abuse

its discretion when it chose not to retain supplemental jurisdiction over Busse’s

state law claims.

III. CONCLUSION

Busse contends that the district court incorrectly dismissed his federal claims

regarding alleged takings and deprivations of property rights. Since Busse’s

takings claim was not ripe because he had not pursued available state remedies and

he failed to adequately plead his other federal claims, the district court correctly

dismissed all of these claims. As a result, despite Busse’s objections to the

contrary, the district court also did not commit an abuse of discretion in not

exercising jurisdiction over his state law claims. Accordingly, we AFFIRM the

district court’s dismissal of Busse’s third amended complaint.

AFFIRMED.

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