Eli Porter v. Derrell Thigpen

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-11373

Non-Argument Calendar

____________________

ELI PORTER,

MICHAEL SINGLETON,

TIMOTHY VAN BEVERHOUDT,

FRANCOIS WILLIAMS,

Plaintiffs-Appellants,

KEYRON COOPER,

Plaintiff,

versus

SGT. DERRELL THIGPEN,

in their individual and official capacities

as Leo’s,

CPL. MATT SOWELL,

in their individual and official capacities

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2 Opinion of the Court 24-11373

as Leo’s,

TFC. JONATHAN MALONE,

in their individual and official capacities

as Leo’s,

LT. CHRIS LACIENSKI,

in their individual and official capacities

as Leo’s,

TCF2 BRENT HAMMOND,

in their individual and official capacities

as Leo’s, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 6:22-cv-00057-JRH-BKE

____________________

Before JORDAN, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

COVID-19 brought difficult challenges to Americans’ daily

lives. This case arises out of those challenges. Eli Porter and others

sued Georgia Governor Brian Kemp, several Georgia State

Troopers, and a Bulloch County deputy sheriff for a host of

constitutional violations arising from Governor Kemp’s executive

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orders at the start of the pandemic. The district court dismissed

the plaintiffs’ complaint and remanded the remaining state-law

claims. We affirm.

I.

In March 2020, Governor Kemp declared a public health

emergency in the State of Georgia because of the spread of COVID-

19. See Ga. Exec. Order No. 03.14.20.01. Per Georgia law, the

Governor may “declare that a state of emergency or disaster

exists.” O.C.G.A. § 38-3-51(a). If the emergency relates to public

health, the Governor must convene the General Assembly for its

approval or disapproval. Id. The Georgia Legislature agreed with

Governor Kemp’s assessment as to COVID-19, vesting him with

several “emergency powers.” Id. § 38-3-51(c). The Governor had

the authority to “enforce all laws, rules, and regulations relating to

emergency management,” as well as the power “to assume direct

operational control of all civil forces and helpers in the state.” Id.

§ 38-3-51(c)(1). Finally, the statute empowered Governor Kemp to

“exercise such other functions, powers, and duties as may be

deemed necessary to promote and secure the safety and protection

of the civilian population.” Id. § 38-3-51(c)(4).

On April 2, the Governor issued a “shelter-in-place” order.

See Ga. Exec. Order No. 04.02.20.01. The order mandated that

Georgians “shelter in place within their homes or places of

residence” to protect “the health, safety, and welfare of” the State’s

residents. Id. at 2. While closing restaurants, gyms, and theaters,

among other establishments, the order carved out several

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exceptions to the shelter-in-place requirement for those engaged in

“essential” services. See id. at 6–7. Examples included obtaining

food or medical supplies, seeking medical treatment, and

exercising outdoors. Id. at 3.

Though the Governor later expanded the definition of

essential services to include “any and all activities that may

preserve the health and welfare of persons” in Georgia, the “ability

to congregate and worship” was not listed. Ga. Exec. Order No.

04.03.20.02 at 2. Finally, the shelter-in-place order explained that

those who violated it “shall be guilty of a misdemeanor.” Ga. Exec.

Order No. 04.02.20.01 at 9. And “all law enforcement” was

“authorized to enforce the Orders.” Ga. Exec. Order No.

04.03.20.02 at 2.

Three days after Governor Kemp issued the shelter-in-place

order, the Redeeming Church of God the Bible Way “held worship

services.” Plaintiff Eli Porter, the church’s pastor, as well as

Plaintiffs Francois Williams, Michael Singleton, and Timothy van

Beverhoudt, attended. After an “unnamed” Bulloch County

deputy sheriff—Deputy Borne, according to the plaintiffs—alerted

the Georgia State Patrol, Sergeant Derrell Thigpen and Corporal

Matt Sowell responded. The troopers tried to coax the plaintiffs

into “voluntary compliance” with the executive order, even

speaking to Porter’s attorney over the phone. Thigpen made it

clear that if Porter did not comply, he would “mandat[e]

compliance.” Thigpen and Sowell then left the church.

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Other troopers arrived later that day. Lieutenant Chris

Lacienski tried to speak to the plaintiffs, “who informed him that

they did not wish to speak with him.” After several refusals,

Lacienski instructed Trooper Aaron DiGiacomo to cite the

plaintiffs for reckless conduct under the Governor’s executive

orders. See O.C.G.A. § 16-5-60. The charges were dismissed

several months later.

The plaintiffs sued Governor Kemp, the troopers, and

Deputy Borne in state court. The defendants then removed the

case to federal court. After several dismissals, the plaintiffs filed the

operative second amended complaint, asserting various state and

federal claims. Governor Kemp and the other defendants moved

to dismiss. The district court granted the motions with respect to

the federal claims and refused to exercise supplemental jurisdiction

over the state-law claims.

On appeal, the plaintiffs challenge several of these holdings.

For Governor Kemp and the troopers, the plaintiffs contend that

the district court erred by (1) concluding that Eleventh

Amendment immunity barred certain claims; (2) dismissing their

First Amendment retaliation and due process claims for failure to

state a claim; and (3) determining that their free exercise claim was

foreclosed by qualified immunity. The plaintiffs raise similar

objections on their claims against Deputy Borne.

II.

We review a district court’s grant of a motion to dismiss de

novo. Paez v. Mulvey, 915 F.3d 1276, 1292 (11th Cir. 2019).

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III.

A. STATE DEFENDANTS

Eleventh Amendment & Sovereign Immunity. The plaintiffs

first allege that the district court erred by dismissing their § 1983

claims against the Governor and troopers for three reasons. None

is persuasive.

First, the plaintiffs contend that the State defendants’

removal of the case to federal court waived their Eleventh

Amendment immunity. See Lapides v. Bd. of Regents of Univ. Sys. of

Ga., 535 U.S. 613, 624 (2002). That is incorrect. A state—if it so

chooses—may “retain immunity from liability for a particular claim

even if it waives its immunity from suit in federal courts.” Stroud v.

McIntosh, 722 F.3d 1294, 1301 (11th Cir. 2013) (emphasis added). In

other words, although the State defendants’ removal “to federal

court waived [their] immunity-based objection to a federal forum,”

they “retained [their] immunity from liability for a violation” of

§ 1983. Id. And because a suit for money damages against the

Governor and troopers in their official capacities operates as a suit

against the State, it is barred by the Eleventh Amendment.

Kentucky v. Graham, 473 U.S. 159, 169 (1985).

Second, the plaintiffs contend that the district court erred by

dismissing their claims for declaratory and injunctive relief on

sovereign-immunity grounds. But the district court did no such

thing. Instead, the court dismissed the plaintiffs’ claims because

they failed to state a claim for relief “as to all their [substantive]

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§ 1983 claims.” 1 The plaintiffs have made no argument that

dismissal of those claims on that basis was improper.

Finally, the plaintiffs assert that sovereign immunity does

not apply to defendants “sued in their individual capacities.” Once

again, the district court never said that it did. Instead, the court

held that sovereign immunity bars the plaintiffs’ § 1983 claims “for

monetary relief against Defendants in their official capacity.” The

court then dismissed the plaintiffs’ claims against the Governor and

troopers in their individual capacities for either failure to state a

claim or qualified immunity. Again, the plaintiffs make no

argument that dismissal on those bases was incorrect.

First Amendment Retaliation & Due Process. Next, the

plaintiffs argue that the district court erred when it dismissed their

First Amendment retaliation and due process claims. We disagree.

Start with First Amendment retaliation. To allege such a

claim, a plaintiff must establish “first, that his speech or act was

constitutionally protected; second, that the defendant’s retaliatory

conduct adversely affected the protected speech; and third, that

there is a causal connection between the retaliatory actions and the

adverse effect on speech.” Bennett v. Hendrix, 423 F.3d 1247, 1250

(11th Cir. 2005), abrogated in part on other grounds by Pearson v.

Callahan, 555 U.S. 223 (2009). But “probable cause should generally

1

Given that the shelter-in-place order expired on April 13, 2020, these claims

are also moot. See Ga. Exec. Order No. 04.02.20.01.

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defeat a First Amendment retaliatory arrest claim.” Nieves v.

Bartlett, 587 U.S. 391, 405 (2019).

That resolves this claim. The plaintiffs concede that

Governor Kemp’s April 2 executive order required them to shelter

in place save for “essential” activities. Attending indoor religious

services was not considered essential. What’s more, violation of

the executive order was a misdemeanor. See Ga. Exec. Order No.

04.02.20.01. The plaintiffs violated the order by conducting and

attending worship services on April 5. Because the troopers had

probable cause to arrest the plaintiffs, their First Amendment

retaliation claims fail. See DeMartini v. Town of Gulf Stream, 942 F.3d

1277, 1289 (11th Cir. 2019).

The plaintiffs’ substantive and procedural due process

claims fare no better. The plaintiffs argue that Governor Kemp and

the troopers violated their substantive due process rights “by

attempting to criminalize and enforce an unconstitutional mandate

that Plaintiffs remain in their homes.” But when “a specific

constitutional provision covers a plaintiff’s claim, the requirements

of that provision are not to be supplemented through the device of

‘substantive due process.’” Echols v. Lawton, 913 F.3d 1313, 1326

(11th Cir. 2019) (quotation omitted); see also County of Sacramento v.

Lewis, 523 U.S. 833, 842 (1998). The plaintiffs’ claims that they were

deprived of the right to leave their homes, to engage in “religious

practices and worship,” and “to socialize in the presence of others”

fall under the purview of the Free Exercise Clause, so the district

court properly dismissed their substantive due process claim.

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The plaintiffs next allege that the Governor violated their

procedural due process rights by issuing the shelter-in-place order

“without any notice or process” and with “no opportunity to be

heard.” The troopers, according to the plaintiffs, are liable for

“enforcing Defendant Kemp’s unconstitutional orders.” The

district court dismissed this count for failure to state a claim.

We agree. Procedural due process is necessarily “flexible,”

and “calls for such procedural protections as the particular situation

demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). And

“summary administrative action may be justified in emergency

situations.” Hodel v. Va. Surface Mining & Reclamation Ass’n, 452

U.S. 264, 300 (1981) (collecting cases). What’s more, “[p]rotection

of the health and safety of the public is a paramount governmental

interest” that can justify “summary administrative action.” Id.

The plaintiffs do not contest that the Governor issued—and

the troopers enforced—the executive orders to “address [the

COVID-19] emergency, control the spread of COVID-19, and aid

recovery efforts.” Issued at the beginning of a large-scale public

health emergency to counter the spread of a deadly disease, the

executive orders did not violate the plaintiffs’ procedural due

process rights.

Free Exercise. Finally, the plaintiffs argue that the Governor

and troopers violated their free exercise rights by issuing and

enforcing the executive orders. They contend that the district

court erred in granting the Governor and troopers qualified

immunity on this claim. We disagree because it was not clearly

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established that Governor Kemp’s executive orders—and the

troopers’ enforcement of those orders—violated the Free Exercise

Clause.

For qualified immunity to apply, public officials must be

acting within their discretionary authority. Huebner v. Bradshaw,

935 F.3d 1183, 1187 (11th Cir. 2019). If so, the burden shifts to the

plaintiffs. To meet this burden, the plaintiffs must show that

(1) they “suffered a violation of a constitutional right,” and (2) the

right “was ‘clearly established’ at the time of the alleged

misconduct.” Id. Courts may address these prongs in either order.

T.R. v. Lamar Cnty. Bd. of Educ., 25 F.4th 877, 883 (11th Cir. 2022).

We begin with discretionary authority. The Georgia

Legislature empowered Governor Kemp to declare a public health

emergency and to take all steps “necessary to promote and secure

the safety and protection of the civilian population.” O.C.G.A.

§ 38-3-51(c)(4). Governor Kemp exercised these powers through

several executive orders. So too did he authorize the troopers to

“enforce” the relevant executive orders. See Ga. Exec. Order No.

04.03.20.02 at 2. Issuing and enforcing the executive orders thus

fell well within the “arsenal of powers” enjoyed by the Governor

and the troopers. Carruth v. Bentley, 942 F.3d 1047, 1055 (11th Cir.

2019) (quotation omitted).

At the second step, we need not consider whether there was

a constitutional violation because the law was not clearly

established. Governments may impose neutral laws of general

applicability that incidentally burden religious practice. Thai

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Meditation Ass’n of Ala., Inc. v. City of Mobile, 83 F.4th 922, 928 (11th

Cir. 2023). The plaintiffs assert that the Governor’s executive

orders were “not neutral, not generally applicable” because they

carved out certain secular activities as essential without providing

a corresponding exemption for religious activities. We need not

reach the merits of this argument. Even if the executive orders

violated the plaintiffs’ free exercise rights, qualified immunity

shields the Governor and troopers from liability.

As of April 5, 2020, the plaintiffs could not show that failing

to provide a comparable exemption for religious activity violated

the Free Exercise Clause. Indeed, each of the cases cited by the

plaintiffs to support their claims were decided after the April 2

executive order giving rise to the events of this case. See Roman

Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020) (per curiam);

S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021);

Tandon v. Newsom, 593 U.S. 61 (2021) (per curiam). Our sister

circuits have held that executive orders at the start of the pandemic

did not violate the First Amendment. See, e.g., Pleasant View Baptist

Church v. Beshear, 78 F.4th 286, 300 (6th Cir. 2023); Elim Romanian

Pentecostal Church v. Pritzker, 22 F.4th 701, 703 (7th Cir. 2022)

(noting that it was “impossible to describe as ‘clearly established’ in

the spring of 2020 a rule that a capacity limit on religious services

during a pandemic violates the Constitution” (emphasis added)).

The Governor is entitled qualified immunity on this claim.

So are the troopers. As of the time the troopers acted, no

authority clearly established that Governor Kemp’s executive

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orders were unconstitutional. And “[p]olice are charged to enforce

laws until and unless they are declared unconstitutional.” Michigan

v. DeFillippo, 443 U.S. 31, 38 (1979). The officers are also entitled to

qualified immunity on this claim.

B. DEPUTY BORNE

We next address Deputy Borne. Our conclusion remains

the same, but for different reasons. We dismiss Borne from this

dispute because the plaintiffs abandoned their appeal against him.

See United States v. Campbell, 26 F.4th 860, 872–74 (11th Cir. 2022)

(en banc). Borne is not listed as an appellee in the caption of their

appeal. Nor is he included in the certificate of interested persons,

and his counsel is not listed on the certificate of service. Indeed,

Borne goes unmentioned in the plaintiffs’ briefing save for one

page in the “course of proceedings” section. Finally, the plaintiffs

did not include Borne on their motion for leave to file a civil appeal

out of time or in their civil appeal statement. Borne is thus no

longer a party in this appeal.

* * *

Seeing no errors in the district court’s decision, we AFFIRM.