IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

CITIZENS STATE BANK, a Florida

Corporation, f/k/a THE CITIZENS

BANK OF PERRY,

Plaintiff,

vs. CASE NO.: 1:10-CV-224-SPM/GRJ

DIXIE COUNTY, a political subdivision

of the State of Florida,

Defendant.

______________________________/

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

This cause comes before the Court on Defendant’s motion for summary

judgment (doc. 70), Plaintiff’s response (doc. 84), and Defendant’s reply (doc.

90). Plaintiff is suing Dixie County for claims arising from the role of the county

attorney and his conduct prior to and subsequent to Dixie County’s issuance of

land development approvals to River Shores. Plaintiff alleges that it has been

denied its property rights without due process through the county’s deliberate

indifference to the risk it was creating to those who might have an interest in

River Shores’ property when it failed to address the county attorney’s dual

representation of the county and River Shores in proceedings before the county

Case 1:10-cv-00224-SPM-GRJ Document 127 Filed 11/22/11 Page 1 of 8
Board of Commissioners. Defendant has moved for summary judgment on 1

various grounds. During the pre-trial conference on November 21, 2011, Plaintiff

moved to dismiss Counts II and III, the counts involving the cash bond. The

motion was granted. Accordingly, only Count I, the “Land Use Approval” claim

remains and is the only issue dealt with in this order. Because the Court finds

that Plaintiff’s substantive due process claim is not viable, the motion for

summary judgment is granted.

SUMMARY JUDGMENT STANDARD

Summary judgment will be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). Evidentiary material acceptable in

opposition to the motion includes “depositions, documents, electronically stored

information, affidavits or declarations, stipulations . . . admissions, interrogatory

answers, or other materials,” indicating the existence of a genuine issue of

material fact. Fed. R. Civ. P. 56(c). The court views the evidence and all factual

inferences in the light most favorable to the nonmoving party, and resolves all

reasonable doubts about the facts in favor of the nonmoving party. Burton v.

City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999).

If the moving party has satisfied its burden, the burden shifts to the

The case background is more fully set forth in the Order on 1

Defendant’s Motion to Dismiss (doc. 32).

-2-

Case 1:10-cv-00224-SPM-GRJ Document 127 Filed 11/22/11 Page 2 of 8
nonmoving party who must show “that summary judgment would be

inappropriate because there exists a material issue of fact.” Mullins v. Crowell,

228 F.3d 1305, 1313 (11th Cir. 2000). The nonmoving party must show more

than the existence of a “metaphysical doubt” regarding material facts, and a

“scintilla” of evidence will not suffice. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). The burden can be met by presenting enough

evidence to show that a reasonable finder of fact could find for the nonmoving

party. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). The basic

inquiry is “whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a

matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).

ANALYSIS

To establish a claim under 42 U.S.C. § 1983, “a plaintiff must prove (1) a

violation of a constitutional right, and (2) that the alleged violation was committed

by a person acting under color of state law.” Holt v. Glenn, 361 F. App’x 75, 77

(11th Cir. 2010). “The first inquiry in any § 1983 lawsuit . . . is whether the

plaintiff has been deprived of a right secured by the Constitution and laws.” Id. 

The Fourteenth Amendment of the United States Constitution provides that “[n]o

State shall . . . deprive any person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction the equal protection of the

laws.” U.S. CONST. amend. XIV § 1. Embodied in the Fourteenth Amendment is

-3-

Case 1:10-cv-00224-SPM-GRJ Document 127 Filed 11/22/11 Page 3 of 8
protection of both procedural and substantive due process. Plaintiff’s claim is

based on substantive due process.2

Substantive Due Process

“The substantive component of the Due Process Clause protects those

rights that are fundamental, that is, rights that are implicit in the concept of

ordered liberty.” McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en

banc) (internal citations omitted). Fundamental rights are created only by the

Constitution. DeKalb Stone, Inc. v. County of DeKalb, Ga, 106 F.3d 956, 959

n.6 (11th Cir. 1997) (per curiam). “Property interests, of course, are not created

by the Constitution. Rather they are created and their dimensions are defined by

existing rules or understandings that stem from an independent source such as

state law.” Greenbriar Village, L.L.C. v. Mountain Brook, City, 345 F.3d 1258,

1262 (11th Cir. 2003) (per curiam); see also DeKalb Stone, 106 F.3d at 959 (“It

is well established that land use rights, as property rights generally, are statecreated rights.” ). “Areas in which substantive rights are created only by state

law . . . are not subject to substantive due process protection under the Due

Process Clause.” McKinney, 920 F.2d at 1556. “[P]roperty rights have been

During oral argument on the motion for summary judgment on 2

November 21, 2011, Plaintiff indicated that its claims were grounded in

substantive due process, not procedural. Assuming, however, that Plaintiff

asserted a procedural due process claim, that claim would fail given the

uncertainty of its rights at the time of the land use approval. See Greenbriar, 345

F.3d at 1264-67.

-4-

Case 1:10-cv-00224-SPM-GRJ Document 127 Filed 11/22/11 Page 4 of 8
important common law rights throughout history and . . . they are protected in

many situations by procedural due process. Nevertheless, common law rights

are not equivalent to fundamental rights, which are created only by the

Constitution itself.” DeKalb Stone, 106 F.3d at 959 n.6.

If the complained-of state action concerning the deprivation of a statecreated right, is executive in nature, rather than legislative, the plaintiff can not

maintain a substantive due process claim. McKinney, 20 F.3d at 1550; see also

Dekalb Stone, 106 F.3d at 960 (noting that the Eleventh Circuit has held that

executive acts will not sustain an arbitrary and capricious substantive due

process claim for a state-created land use right). “Executive acts

characteristically apply to a limited number of persons” and “typically arise from

the ministerial or administrative activities of members of the executive branch.” 

McKinney, 20 F.3d at 1557. “Legislative acts, on the other hand, generally apply

to a larger segment of – if not all of – society.” Id. Land use regulations have

been classified as an executive act. Reserve, Ltd. v. Town of Longboat Key, 933

F. Supp. 1040, 1044 (M.D. Fla. 1996).

A party may attempt to proceed pursuant to an alternate theory of liability

under § 1983 asserting that the Due Process Clause protects against arbitrary

and irrational action by the government. However, “non-legislative deprivations

of state-created rights which would include land-use rights, cannot support a

substantive due process claim, not even if the plaintiff alleges that the

-5-

Case 1:10-cv-00224-SPM-GRJ Document 127 Filed 11/22/11 Page 5 of 8
government acted arbitrary and irrationally.” Greenbriar, 345 F.3d at 1263.

Substantive Due Process Protection With Regard to “Land Use Approval” Claim

Defendant argues that Plaintiff is not entitled to substantive due process

protection with regard to its “Land Use Approval” claim because property rights

are state-created rights and are not entitled to substantive due process

protection. Defendant further asserts that the application of land use regulations

is typically classified as an executive act and is therefore only entitled to

procedural due process. The Court agrees. Plaintiff alleges a substantive due

process violation of its property right; but the Eleventh Circuit has made clear

that there is no substantive due process protection for state-created, real

property rights. Moreover, Plaintiff’s claim rests on allegations of governmental

misconduct that impacted a particular entity – characteristics of non-legislative,

executive action. Such an allegation cannot sustain a claim for a substantive

due process violation.

Plaintiff attempts to proceed under a “deliberate indifference” standard.3

A municipality may also be liable under § 1983 for failure to take 3

action, such as failure to supervise. City of Canton, Ohio v. Harris, 489 U.S. 378

(1989). “Only where a municipality’s failure to train its employees in a relevant

respect evidences ‘deliberate indifference’ to the rights of its inhabitants can

such a shortcoming be properly thought of as a city ‘policy or custom’”.

Id. at 389. To establish deliberate indifference on the part of Defendant, Plaintiff

must “present some evidence that the municipality knew of a need to train and/or

supervise in a particular area and the municipality made a deliberate choice not

to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). 

Plaintiff alleges that Defendant should have known of the obvious conflict of

interest when the county attorney was representing both the county board, and

-6-

Case 1:10-cv-00224-SPM-GRJ Document 127 Filed 11/22/11 Page 6 of 8
However, this argument fails. Although this appears to be an alternate theory of

liability under § 1983, it is still a component of substantive due process. 

Therefore, there is still the prerequisite of establishing a violation of a

fundamental right that is entitled to substantive due process protection. See

Rivas v. Freeman, 940 F.2d 1491, 1496 (“To successfully litigate a lawsuit for

deprivation of constitutional rights under 42 U.S.C. section 1983, a plaintiff must

show violation of a constitutionally protected liberty or property interest and

deliberate indifference to constitutional rights.”). Even under the “deliberate

indifference” or “arbitrary and irrational” standard, there cannot be a substantive

due process claim for non-legislative deprivations of land-use rights. Greenbriar,

345 F.3d at 1264 (noting that its discussion of the alternative substantive due

process claim was “merely academic, and the core reason that a substantive due

process claim does not exist . . . is that no interest protected by a fundamental

right is being deprived.”)

Plaintiff’s response to the motion for summary judgment focuses on

whether the county knew of the county attorney’s dual representation of the

county and River Shores before the county board, and argues that there is a

genuine issue as to a material fact. However, Plaintiff does not address

River Shores before the county board. According to Plaintiff, because the county

had notice of this conflict of interest and chose to do nothing about it, Defendant

was deliberately indifferent to the harm that this dual representation might cause

to third parties’ constitutional interests. 

-7-

Case 1:10-cv-00224-SPM-GRJ Document 127 Filed 11/22/11 Page 7 of 8
Defendant’s arguments on whether there is a viable substantive due process

claim so as to make the disputed fact material. Even viewing the evidence and

all factual inferences in the light most favorable to the Plaintiff, and resolving all

reasonable doubts about the facts in favor of the nonmoving party, Plaintiff’s

substantive due process claim fails. Accordingly, Defendant has shown that it is

entitled to judgment as a matter of law as to Count I. It is hereby

ORDERED AND ADJUDGED:

1. Defendant’s motion for summary judgment (doc. 70) is granted as

to the remaining claim. The clerk shall enter judgment accordingly.

2. All other pending motions are denied as moot.

DONE AND ORDERED this 22nd day of November, 2011.

S/ Stephan P. Mickle 

Stephan P. Mickle

Senior United States District Judge

-8-

Case 1:10-cv-00224-SPM-GRJ Document 127 Filed 11/22/11 Page 8 of 8