FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 March 28, 2007

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-11523

Non-Argument Calendar

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D.C. Docket No. 01-01449-CV-J-16MCR

GENE A. YOUNGBLOOD,

individually and as Chairman

of the Board/Pastor of First

Southern Baptist Church,

FIRST CONSERVATIVE BAPTIST

CHURCH OF JACKSONVILLE, a

Florida not-for-profit corporation, 

 

Plaintiffs-Appellants, 

versus

FLORIDA DEPARTMENT OF HEALTH,

an agency/political subdivision of the State

of Florida,

JAMES SLIVA, as an individual and/or

as an agent/employee of the State of Florida

Department of Health,

WILLIAM NOWLIN, as an individual and/or

as an agent/employee of the State of Florida

Department of Health,

ADELINE DOBSON, as an individual and/or

as an agent/employee of the State of Florida

Department of Health,

CITY OF JACKSONVILLE, FL,
2

DAVID BOYD, as an individual and/or

as an agent/employee of the City of

Jacksonville, FL,

ROGER BUTLER, as an individual

and/or as an agent/employee of the

City of Jacksonville, FL,

CHUCK PERRETT, as an individual

and/or as an agent/employee of the 

City of Jacksonville, FL, et al.,

 

 Defendants-Appellees. 

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Appeal from the United States District Court

for the Middle District of Florida

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(March 28, 2007)

Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

Gene A. Youngblood and First Conservative Baptist Church of Jacksonville

(“Plaintiffs”) appeal the district court’s grant of summary judgment for the Florida

Department of Health (“DOH”); DOH employees James Sliva, Adeline Dobson,

and William Nowlin; the City of Jacksonville (“City”); and City employees David

Boyd, Roger Butler, and Chuck Perrett (collectively “Defendants”). Because no

reversible error has been shown, we affirm.

Viewing the record in the light most favorable to Plaintiffs, these assertions

are the facts. Plaintiffs possess real property on which they operate the First
3

Conservative Baptist Church (“church”) and the Conservative Christian Academy

(“school”). Under state law, the DOH conducts periodic and unscheduled

inspections of school and food-service facilities. On 2 May 2001, Defendant Sliva

was granted access to and entered the property to conduct an inspection. During

the inspection of a kitchen area used by the school, Sliva saw a playground and

walked out to inspect it. Youngblood, the pastor of the church, told Sliva that the

church playground was not part of the school and therefore beyond his authority to

inspect.

Although Sliva completed a report on which he marked the inspection as

“complete” and “satisfactory,” he told his supervisor, Defendant Dobson, that he

was not given access to inspect the playground or classrooms. Dobson then

discussed the inspection with her supervisor, Gale Tucker, who decided that DOH

should return to the property for further inspection of the classrooms and

playground. Tucker wrote Youngblood a letter about this decision, but

Youngblood called DOH to tell the agency not to return. DOH then coordinated

with the Jacksonville Sheriff’s Office (“JSO”) to provide security during the

planned inspection.

On 16 May 2001, DOH inspectors and JSO officers arrived at the property

and entered the foyer area. Dorothy Youngblood, wife of the pastor, informed
 Defendants contend that no such threats were made. 

1

 Pastor Youngblood allegedly told the officers that he would close the school before he would 2

allow the group to inspect private church property. Youngblood claims that Defendant Dobson

responded that the pastor should go ahead and close the school.

 Florida Statutes section 381.0025(2) provides that “any person who interferes with, hinders, or 3

opposes any employee of the [DOH] in the discharge of his or her duties . . . is guilty of a

misdemeanor of the second degree.”

4

Defendants that they could not inspect the premises without her husband’s

approval. Officers then threatened to arrest and to incarcerate Mrs. Youngblood if

she did not allow inspectors “into the church.” Pastor Youngblood then arrived 1

on the scene and told Defendants that, without a warrant, they could inspect only

what they normally inspect. Officers then threatened to arrest the pastor if he did

not submit to the inspection of “all the facilities.” After Youngblood again 2

refused access, officers issued a Notice to Appear for Youngblood’s alleged

violation of Florida law.3

Plaintiffs’ complaint, filed in part under 42 U.S.C. §§ 1983, 1985, alleged

many violations of state and federal constitutional rights, including free exercise

of religion, equal protection, due process, privacy, and the right to be free from

unlawful search and seizure. Plaintiffs also claimed that the DOH and the City

were negligent in supervising and retaining their employees and that Defendants

conspired to violate Plaintiffs’ rights. First, the district court correctly granted in
 The district court dismissed Plaintiffs’ claims under the Florida Constitution to the extent they 4

sought monetary damages because Plaintiffs cited no authority -- similar to 42 U.S.C. § 1983 in the

federal context -- creating a civil cause of action for monetary relief under the Florida Constitution.

See Resha v. Tucker, 670 So. 2d 56, 58-59 (Fla. 1996). Also, the district court concluded that the

Eleventh Amendment bars Plaintiffs’ claims for monetary damages against the DOH and the state

inspectors in their official capacities. Cross v. Alabama, 49 F.3d 1490, 1503 (11th Cir. 1995). But,

the district court did not dismiss most of Plaintiffs’ claims to the extent they sought declaratory and

injunctive relief. The district court did dismiss Plaintiffs’ claim for negligent supervision and

retention because Plaintiffs did not properly allege compliance with the presuit notice requirements

of Florida Statutes section 768.28(6).

 The district court granted summary judgment on the remaining claims for monetary relief 5

because either (1) Plaintiffs failed to establish the violation of a constitutional or statutory right; or

(2) to the extent that Plaintiffs had shown a violation of federal constitutional rights by the DOH

Inspectors and JSO Officers, the district court concluded these Defendants were entitled to qualified

immunitybecause such rightswere not clearly established. Plaintiffs’ federal claims against the City

failed because Plaintiffs failed to show the City had a policy or custom that violated their rights and

because the JSO officers themselves committed no constitutional violation. On the remaining claims

for declaratory and injunctive relief, the district court concluded that Plaintiffs lacked Article III

standing to request such relief because Plaintiffs’ failed to show the existence of a continuing

justiciable controversy or a real and immediate threat.

5

part the motions of several Defendants to dismiss some of the claims in the

complaint. Later, the district court granted summary judgment in favor of all 4

Defendants on each of Plaintiffs’ remaining claims. We review a district court’s 5

grant of summary judgment de novo and examine the facts in the light most

favorable to the nonmoving party. Cruz v. Publix Super Mkts., Inc., 428 F.3d

1379, 1382 (11th Cir. 2005).

First, the district court correctly granted summary judgment on Plaintiffs’

remaining claims for declaratory or injunctive relief. We agree with the district

court that Plaintiffs lack Article III standing to receive prospective relief because
While none of the Defendant DOH inspectors have returned to the property, the DOH has

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conducted several inspections of the property without incident since 2001. Also, no state policy

allows inspection of private church facilities, and Plaintiffs have alleged no facts to demonstrate a

real or immediate threat that the DOH or other government officers will perform such inspections.

6

the threat of future injury “remains conjectural, hypothetical, or contingent, and

not real and immediate.” Shotz v. Cates, 256 F.3d 1077, 1082 (11th Cir. 2001)

(citation and quotation marks omitted).6

Next, Plaintiffs claim that Defendants violated Plaintiffs’ free exercise

rights under the state and federal constitutions and under the Florida Religious

Freedom Restoration Act (“FRFRA”). Plaintiffs assert that Defendants’ acts

forced Plaintiffs “to either forfeit their ministry or submit to the unconstitutional

warrantless searches of private property.” We agree with the district court that

Plaintiffs have alleged insufficient facts to show how Defendants’ acts violated

Plaintiffs’ right to free exercise of religion. An attempt by state and local officials

to enforce a neutral and generally applicable law or regulatory structure is no

violation of the Free Exercise Clause. Warner v. City of Boca Raton, 420 F.3d

1308, 1310 (11th Cir. 2005). Also, although FRFRA requires that courts apply

strict scrutiny to a Florida law that substantially burdens the free exercise of

religion, Fla. Stat. §§ 761.03 (2003), Plaintiffs have failed to demonstrate how
 Plaintiffs assert that Defendants’ acts imposed a substantial burden because Plaintiffs would 7

have had to close the church and school to be free from unlawful entry onto their private property.

Plaintiffs, however, have failed to allege facts that would demonstrate that Defendants’ entry onto

private property and subsequent activities thereon were unlawful. Also, a simple allegation that

Plaintiffs are “considering” closing their facilities is, by itself, insufficient to rise to the level of a

substantial burden on the free exercise of religion.

7

Defendants’ acts constituted a “substantial burden” on Plaintiffs’ free exercise of

religion.

7

Plaintiffs also allege that Defendants engaged in arbitrary discrimination in

violation of Plaintiffs’ right to equal protection. But, Plaintiffs have produced no

evidence that Defendants carry out inspections of other similarly situated private

schools in a less burdensome manner or that Defendants selectively enforced a

facially neutral regulatory scheme for the purpose of discriminating against

Plaintiffs. See Campbell v. Rainbow City, 434 F.3d 1306, 1313-14 (11th Cir.

2006). We therefore affirm the district court’s grant of summary judgment on

Plaintiffs’ equal protection claims.

Next, Plaintiffs claim that Defendants violated their due process rights by

arbitrarily issuing Pastor Youngblood a Notice to Appear for his refusal to allow

the inspection of the property. Although Plaintiffs do not label their claim as a

violation of either procedural or substantive due process, we conclude that

Plaintiffs experienced neither kind of due process violation. Plaintiffs have failed

to demonstrate how Defendants’ acts deprived Plaintiffs of a constitutionally
 Plaintiffs privacy claim under the Florida Constitution -- which is essentially a restatement of 8

its search and seizure claim -- lacks merit because Plaintiffs have failed to show how Defendants’

acts infringed on a legitimate expectation of privacy.

 Recognizing that administrative searches are subject to the warrant requirement, the district court 9

determined Defendants’ acts amounted to a constitutional violation but did not violate a clearly

established right. Because no search or seizure occurred, we conclude that Defendants did not

violate the Fourth Amendment.

8

protected liberty or property interest without an adequate process. See Grayden v.

Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). Also, Defendants’ acts -- even as

alleged by Plaintiffs -- do not “rise to the level of a substantive due process

violation” because they cannot “be characterized as arbitrary or conscience

shocking in a constitutional sense.” Waddell v. Hendry County Sheriff’s Office,

329 F.3d 1300, 1305 (11th Cir. 2003).

Plaintiffs further allege that Defendants engaged in an unlawful search and

seizure by attempting to search private property without a warrant and thereafter

issuing Youngblood a Notice to Appear. To establish a Fourth Amendment

8

violation, a plaintiff first must demonstrate the occurrence of “a search and seizure

of that individual’s person, house, papers or effects, conducted by an agent of the

government.” United States v. Bachner, 706 F.2d 1121, 1125 (11th Cir. 1983). 

Here, Defendants’ acts constituted neither a search nor a seizure. Youngblood 9

admitted that JSO officers and DOH inspectors did not search or seize anything on

16 May 2001. We do not accept Plaintiffs’ claim that issuing a Notice to Appear
 We have rejected the theory of “continuing seizure” in situations such as this where the only 10

restraint on a person is the requirement to appear in court to answer the state’s charges. Kingsland

v. City of Miami, 382 F.3d 1220, 1235-36 (11th Cir. 2004).

9

to Youngblood was, in effect, an arrest. A person is “seized” for Fourth

Amendment purposes only if “a reasonable person would have believed that he

was not free to leave.” United States v. Mendenhall, 100 S. Ct. 1870, 1877

(1980). Here, JSO officers merely issued a Notice to Appear, which did not

“seize” Youngblood, but required him to appear in court at a later date. Because 10

the facts -- even as alleged by Plaintiffs -- do not show the occurrence of any

search or seizure by Defendants, the district court properly granted Defendants’

motion for summary judgment on Plaintiffs’ unlawful search and seizure claims.

The district court also properly granted summary judgment on Plaintiffs’

civil conspiracy claim. Plaintiffs have failed to prove the threshold element of this

claim: the existence of an underlying constitutional violation. GJR Investments,

Inc. v. County of Escambia, 132 F.3d 1359, 1370 (11th Cir. 1998). Also,

Plaintiffs have presented no particularized allegations that Defendants reached an

understanding to violate Plaintiffs’ rights. Rowe v. City of Ft. Lauderdale, 279

F.3d 1271, 1283 (11th Cir. 2002). That DOH employees coordinated with JSO

officers about meeting at the property to conduct an inspection is insufficient to

show a conspiracy. Plaintiffs claim of civil conspiracy, therefore, fails.
 Where we have concluded that no constitutional violation occurred at all, we would, in the 11

alternative, uphold the grant to individuals of qualified immunity if we are mistaken on the violation

issue.

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The district court’s grant of summary judgment in favor of Defendants is

affirmed.

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AFFIRMED.