Steven Dewitt v. Ceressa Haney

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11203

____________________

STEVEN R. DEWITT,

Plaintiff-Appellant,

versus

UNKNOWN PERSON, et. al.,

Defendants,

CERESSA HANEY,

Supervisor,

TRENT SEXTON,

Police Officer,

MELANIE PRETTI,

Police Officer,

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2 Opinion of the Court 23-11203

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:21-cv-00340-AW-MAF

____________________

Before NEWSOM, BRASHER, and WILSON, Circuit Judges.

PER CURIAM:

Steven DeWitt appeals the dismissal of his 42 U.S.C. § 1983

complaint alleging the violation of his First Amendment rights

stemming from an event in which he contends Probation Supervi-

sor Ceressa Haney prevented him from conducting a “First

Amendment audit” inside a probation office and then subsequently

had him escorted from the premises by Officers Trent Sexton and

Melanie Pretti. 1 Relying primarily on our decision in Smith v. City

of Cumming, 212 F.3d 1332 (11th Cir. 2000), DeWitt asserts that the

defendants violated his First Amendment right to film inside a state

probation office. Smith, he says, stands for the proposition that cit-

izens have a clearly established right to gather information about

1 Dewitt has been superbly represented on appeal by Christian Tyrone Quarles

and Carson W. Freund, both students in the Appellate Advocacy Clinic at the

University of Alabama School of Law. We thank Messrs. Quarles and Freund

for their service, not only to their client but also to the Court.

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23-11203 Opinion of the Court 3

what public officials do on public property and to record matters

of public interest. After careful review, and with the benefit of oral

argument, we affirm the district court’s decision.2

When ruling on a motion to dismiss, we accept “the facts

alleged in the complaint as true, drawing all reasonable inferences

in the plaintiffs favor.” Keating v. City of Miami, 598 F.3d 753, 762

(11th Cir. 2010). To avoid dismissal, the complaint “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Qualified immunity shields officials from civil liability “so

long as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quotation marks

and citations omitted). To be entitled to qualified immunity, the

defendant officials must first show they acted within their discre-

tionary authority. Lewis v. City of W. Palm Beach, 561 F.3d 1288,

1291 (11th Cir. 2009). DeWitt concedes that the defendants here

were acting within their discretionary authority. Thus, the burden

shifts to DeWitt to “show that qualified immunity is not appropri-

ate.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).

2 We “review the denial of a Rule 12(b)(6) motion to dismiss on qualified or

official immunity grounds de novo, applying the same standard as the district

court.” Gates v. Khokhar, 884 F.3d 1290, 1296 (11th Cir. 2018).

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4 Opinion of the Court 23-11203

To overcome qualified immunity, the plaintiff must allege

facts establishing two things: (1) that there was a violation of a con-

stitutional right by the defendant official and (2) that the constitu-

tional right violated was “clearly established” at the time of the al-

leged misconduct. Jacoby v. Baldwin Cnty., 835 F.3d 1338, 1344

(11th Cir. 2016). We may affirm a grant of qualified immunity by

addressing either prong or both. Id.

As to the second prong, the contours of the constitutional

right at issue must be so clear “that every objectively reasonable

official standing in the defendant’s place would be on notice that

what the defendant official was doing would be clearly unlawful

given the circumstances.” Long v. Slaton, 508 F.3d 576, 584 (11th

Cir. 2007). The right “must be well-established enough that every

reasonable official would have understood that what he is doing

violates that right,” and “existing precedent must have placed the

statutory or constitutional question beyond debate and thus given

the official fair warning that his conduct violated the law.” Gates,

884 F.3d at 1296 (quotation marks and citations omitted); see Mul-

lenix, 577 U.S. at 12 (‘The dispositive question is whether the viola-

tive nature of particular conduct is clearly established.” (quotation

marks and citation omitted)).

“[A] right can be clearly established in one of three ways.”

Crocker v. Beatty, 995 F.3d 1232, 1240 (11th Cir. 2021). The plaintiff

must point to either “(1) case law with indistinguishable facts, (2) a

broad statement of principle within the Constitution, statute, or

case law, or (3) conduct so egregious that a constitutional right was

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23-11203 Opinion of the Court 5

clearly violated, even in the total absence of case law.” Id. (quota-

tion marks and citation omitted). When the plaintiff relies on a

general rule to show the law is clearly established, it must apply

with “obvious clarity to the circumstances.” Long, 508 F.3d at 584

(quotation marks and citation omitted).

In Smith v. City of Cumming, we stated that “[t]he First

Amendment protects the right to gather information about what

public officials do on public property, and specifically, a right to

record matters of public interest.” 212 F.3d at 1333. We further

stated that there is a “First Amendment right, subject to reasonable

time, manner and place restrictions, to photograph or videotape

police conduct.” Id.

In Crocker v. Beatty, though, we clarified the outer boundary

of Smith’s broad holding in a case involving a plaintiff who stopped

on the shoulder of an interstate highway to photograph law-en-

forcement at the scene of a fatal car accident. See 995 F.3d at 1237–

38, 1240–41. We noted that it was “decidedly not obvious that

Smith’s general rule applies to the specific situation in question” in

Crocker because “Smith’s declaration of a right to record police con-

duct came without much explanation.” Id. at 1240-41 (quotation

marks and citation omitted). We further emphasized that Smith

“provided few details regarding the facts of the case, making it dif-

ficult to determine the context of the First Amendment right it rec-

ognized.” Id. at 1241 (quotation marks and citation omitted). Im-

portantly here, we explained that the “dearth of detail about the

contours of the right announced in Smith undermines any claim

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6 Opinion of the Court 23-11203

that it provides officers ‘fair warning’ under other circumstances.”

Id.

DeWitt relies on “a broad statement of principle within the

Constitution, statute, or case law” to argue he had a clearly estab-

lished right to film inside a state probation office. Id. at 1240 (cita-

tion omitted). Based primarily on Smith, he argues that he had a

clearly established right to record matters of public interest and

public officials on public property—and thus, he says, to conduct a

“First Amendment audit” of a probation office. See Smith, 212 F.3d

at 1333. Our ensuing decision in Crocker, though, explained that

the language in Smith was too broad to clearly establish a First

Amendment right to record police officers on the side of a highway.

995 F.3d at 1240–41. So too here. There are no details or facts in

Smith that would communicate to any reasonable officer that

DeWitt had a First Amendment right to film in the probation of-

fice. See Smith, 212 F.3d at 1333. Because neither Smith nor any

case from the Supreme Court or this Court is sufficiently analogous

to make clear to any reasonable official in the defendants’ positions

that preventing a person from filming inside the lobby of a proba-

tion office would violate that person’s constitutional rights, DeWitt

has failed to allege the violation of a clearly established right.

Therefore, Haney and Officers Sexton and Pretti are entitled to

qualified immunity. See Jacoby, 835 F.3d at 1344. Accordingly, we

affirm.3

3 DeWitt separately contends that the district court improperly dismissed his

request for declaratory and injunctive relief on mootness grounds; he asserts

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AFFIRMED.

that this case falls into the capable-of-repetition-yet-evading-review exception

for past harms. But DeWitt failed to plead in his complaint any facts to support

the exception’s application. Moreover, it is well settled that “[u]nder § 1983, a

plaintiff cannot sue an official in [her] individual capacity for injunctive or de-

claratory relief.” Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1214 (10th Cir. 2022);

see also Knowlton v. City of Wauwatosa, 119 F.4th 507, 519 (7th Cir. 2024) (“In an

individual capacity suit, a plaintiff may only seek monetary damages; in an

official capacity suit, a plaintiff may only seek injunctive or declaratory re-

lief.”); Wolfe v. Strankman, 392 F.3d 358, 360 n.2 (9th Cir. 2004), overruled on

other grounds by Munoz v. Superior Ct. of L.A. Cnty., 91 F.4th 977 (9th Cir. 2024)

(same). And the operative complaint here names the defendants only in their

individual capacities.