FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JULY 14, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13926

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D. C. Docket No. 08-00109-CV-4-SPM-WCS

WILLIAM R. MULDROW,

Plaintiff,

BLUE CHIP CONSTRUCTION COMPANY,

Intervenor-PlaintiffAppellee,

versus

CATHY DAVIS,

Individually,

DAVID REID,

Individually,

KENT RICKEY,

Individually,

Defendants-IntervenorDefendants,

CITY OF TALLAHASSEE,

a Municipal Corporation

of the State of Florida,
Defendant-IntervenorDefendant,

CANDIE M. FULLER,

Appellant,

SAM MCCALL,

JOHN MARKS,

JOYCE MARTINEZ,

ANITA FAVORS,

THOMAS LEWIS,

Defendants.

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Appeals from the United States District Court

for the Northern District of Florida

_________________________

(July 14, 2011)

Before HULL and BLACK, Circuit Judges, and HUCK, District Judge.

*

PER CURIAM:

After oral argument and review of the briefs and record, the Court has

determined that Plaintiff-Appellee Blue Chip Construction Company’s (“Blue

Chip”) First Amended Complaint failed to state a retaliation claim in Count II

Honorable Paul C. Huck, United States District Judge for the Southern District of *

Florida, sitting by designation.

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against Defendant-Appellant Candie M. Fuller (“Fuller”), Inspector General of the

Florida Department of Community Affairs, and that the district court erred in

denying Fuller’s motion to dismiss on qualified immunity grounds.

Only Count II of the First Amended Complaint makes allegations against

Fuller, and only Count II as to Fuller is involved in this appeal. Count I of the First

Amended Complaint and Count II as it relates to the other defendants remain

pending in the district court.

I. PROCEDURAL HISTORY

On April 20, 2009, Blue Chip filed its First Amended Complaint (“the

Complaint”) against Fuller and the other defendants. Count I of the Complaint

alleged that the City of Tallahassee and some of its officials maintained a racially

discriminatory policy in awarding certain contracts, and sought damages,

attorneys’ fees, and compensatory and punitive damages under 42 U.S.C. §§ 1983

and 1985. Count I was previously the substance of a free-standing lawsuit. Fuller

was not a defendant in that prior lawsuit and is not a defendant in Count I of this

lawsuit.

Count II of the Complaint alleged that Fuller, at the state level, conspired

with local officials from the City of Tallahassee to engage in a racially

discriminatory audit in retaliation for Blue Chip’s having filed Count I as a free3
standing lawsuit, and sought damages under 42 U.S.C. §§ 1983 and 1985.

Fuller filed a Rule 12(b)(6) motion to dismiss Count II of the First Amended

Complaint, arguing (1) that Blue Chip failed to state a § 1983 claim on which relief

could be granted and (2) that she was entitled to qualified immunity. In an order

dated July 9, 2009, the district court denied Fuller’s motion.

II. DISCUSSION

We review de novo a district court’s denial of a motion to dismiss on the

basis of qualified immunity. Courson v. McMillian, 939 F.2d 1479, 1486 (11th

Cir. 1991). “In ruling on a 12(b)(6) motion, the Court accepts the factual

allegations in the complaint as true and construes them in the light most favorable

to the plaintiff.” Speaker v. U.S. Dep’t of Health and Human Servs. Ctrs. for

Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). To prove

First Amendment retaliation, a plaintiff must show that “(1) his speech or act was

constitutionally protected; (2) the defendant’s retaliatory conduct adversely

affected the protected speech; and (3) there is a causal connection between the

retaliatory actions and the adverse effect on speech.” Moton v. Cowart, 631 F.3d

1337, 1341 (11th Cir. 2011) (quotation marks omitted). To show purposeful racial

discrimination sufficient to overcome qualified immunity, a plaintiff “must plead

sufficient factual matter to show that [defendant] adopted and implemented the []

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policies at issue not for a neutral, investigative reason but for the purpose of

discriminating on account of race, religion, or national origin.” Ashcroft v. Iqbal,

556 U.S. __, 129 S. Ct. 1937, 1948-49 (2009) (discussing federal Bivens claim)

(quotation marks omitted).

In this case, Blue Chip made only conclusory allegations against Fuller in

Count II and failed to provide any factual basis to support the claim that Fuller

engaged in her audit “for the purpose of discriminating on account of race,

religion, or national origin.” Id. at 1949. “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Id. (quoting Bell Atl. Co. v. Twombly, 550

U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)). “Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Accordingly, we reverse the district court’s denial of Fuller’s motion to

dismiss and remand for entry of judgment in favor of Fuller on Count II.

REVERSED AND REMANDED.

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