Ralph Irwin v. Miami-Dade County Public Schools

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

No. 09-11522 ELEVENTH CIRCUIT

OCTOBER 4, 2010

Non-Argument Calendar

JOHN LEY

________________________

CLERK

D. C. Docket No. 06-23029-CV-MGC

RALPH IRWIN,

Plaintiff-Appellant,

versus

MIAMI-DADE COUNTY PUBLIC SCHOOLS,

MIAMI-DADE COUNTY SCHOOL BOARD,

FLORIDA INTERNATIONAL UNIVERSITY,

FLORIDA DEPARTMENT OF LAW ENFORCEMENT,

FLORIDA DEPARTMENT OF EDUCATION,

et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 4, 2010)

Before CARNES, BARKETT, and HULL, Circuit Judges.

PER CURIAM:

Ralph Irwin, proceeding pro se, has sued thirty-seven entities and

individuals who can be grouped as follows: (a) the Miami-Dade County Public

Schools, superintendent Rudolph Crew, and seven other school officials; (b)

Florida state agencies including the Department of Law Enforcement (FDLE), the

Department of Education (FDOE), the Department of Labor (FDOL), and the

Commission on Human Relations (FCHR), along with eight individual state

officials; (c) Florida International University’s Board of Trustees, and four

individual FIU officials; and (d) the federal Department of Education (USDOE),

the Equal Employment Opportunity Commission, eight individual federal officials,

and the United States itself. Irwin’s grievances against these defendants, which he

spells out in a fifty-count complaint alleging numerous statutory and constitutional

violations, stem from his difficulties getting hired as a teacher in Florida because of

his arrest record. The district court entered final judgment against Irwin on all

counts, resolving some of them on motions to dismiss and the rest on summary

judgment.

Raising seventy-four issues on appeal, Irwin seeks reversal of that judgment,

challenges a variety of procedural rulings by the district court, argues that the

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district judge should have recused herself, and seeks sanctions against the

defendants. We find no reversible error, and we affirm in all respects.

Irwin’s troubles began in 1998 when, during a heated argument with his 19-

year-old daughter, he slammed a door and accidentally cut her foot. She called

911, and police arrested Irwin for misdemeanor battery. The state dropped the

charge on the daughter’s request, and the record of Irwin’s arrest was expunged

pursuant to Fla. Stat. § 943.0585. Under Florida law, a person with an expunged

record may lawfully deny the existence of the underlying arrest or conviction,

except when seeking a teacher’s license or applying for employment at a school or

child care facility. Fla. Stat. § 943.059(4)(a)(6).

In 2002, on his application to teach in the Miami-Dade school system, Irwin

answered “No” to a question that asked whether he “ever had a sealed or expunged

record as a result of a criminal court proceeding.”1 When a background check with

FDLE revealed the existence of the sealed record, the school system denied Irwin’s

bid for employment on the ground that he had “falsified” his application, and

reported the matter to FDOE. After its own investigation, FDOE ultimately

cleared Irwin of wrongdoing but put a letter in his file warning that a “future

1

Although the application clearly instructed that “[s]ealed or expunged records must be

reported,” Irwin believed then and still insists today that his arrest did not count as a “criminal

court proceeding” because the matter was dismissed before he actually set foot in a courtroom.

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violation” of professional standards could threaten his teaching certificate. The

combination of the arrest record and the warning letter, Irwin says, effectively

blacklisted him from teaching in Florida. In 2003 and 2004 several different

school programs, including one run by FIU, either rejected his job applications

outright, or hired him but then fired him as soon as the information in his record

came to light. Irwin filed complaints with the FCHR, the EEOC, and both state

and federal Departments of Education, but did not wait for a right-to-sue letter

before bringing this action. Because those agencies did not resolve his complaints

to his satisfaction, they and several of their officials are also defendants in Irwin’s

lawsuit.

Irwin contends that it was illegal to ask him about his expunged arrest

record, and that disclosure of the record violated his rights to privacy, equal

protection, and due process. Irwin, a white male in his fifties, also alleges that the

schools discriminated against him on the basis of his race, sex, and age. He asserts

claims under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 338, 91 S.Ct 1999 (1971); the First, Fifth, and Fourteenth

Amendments; 42 U.S.C. § 1983; Title VII; the Age Discrimination in Employment

Act; the Federal Tort Claims Act; and various Florida statutes.

For many of his seventy-four claims of error on appeal, Irwin offers nothing

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more than summary “issue statements” with no explanation as to how or why the

district court erred. In some cases he simply cites by docket number to the over

three thousand pages’ worth of pleadings he filed in the district court. When even

a pro se appellant makes only passing reference to an issue and fails to argue it on

the merits, the issue is deemed waived. See Farrow v. West, 320 F.3d 1235, 1242

n.10 (11th Cir. 2003); see also Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.

2008); Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002). Irwin’s bare

citations to the record do not explain his “contentions and the reasons for them,”

and thus do not comply with Fed. R. App. P. 28(a)(9).2 Moreover, litigants may

not incorporate by reference arguments from pleadings below in order to evade our

page and space limitations on appellate briefing. See Four Seasons Hotels And

Resorts v. Consorcio Barr S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004).

Other issues raised by Irwin are moot, because he seeks factual

determinations on questions that can be and have been resolved as a matter of law;

or are nonjusticiable, because he asks us to construe the meaning of various federal

and state statutes that would not carry private rights of action even if they were

violated.3 We will not decide questions “that do not matter to the disposition of a

2

Issues 3–4, 13–17, 25, 27, 29–33, 37–40, 48–49, 53–58, 62–64, 66, and 68–72 are

waived for lack of argument.

3

Issues 2, 5, 6–11, 18, 34–35, 41–47, 50–51, and 61 are either moot or nonjusticiable.

5

case.” Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216

(11th Cir. 2009). Two other arguments—that the defendants should be sanctioned

for unspecified discovery violations, and that the district judge should have recused

herself for bias—need not be considered because they are raised for the first time

on appeal. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331

(11th Cir. 2004). And they are meritless anyway.

The district court properly disposed of all of Irwin’s other claims. The court

correctly dismissed Irwin’s claims against the federal agencies and the individual

federal defendants. Irwin has identified no basis for waiver of sovereign immunity

that would permit jurisdiction over his claims against the agencies or against the

United States itself. See F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996,

1000 (1994). There is no cause of action against the EEOC for its alleged

mishandling of a discrimination complaint against a third party. Smith v. Casellas,

119 F.3d 33, 34 (D.C. Cir. 1997); Gibson v. Mo. Pac. R.R. Co., 579 F.2d 890, 891

(5th Cir. 1978).4 There is no underlying state-law tort to support a claim under the

Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1). A Bivens action against

individual federal officials is appropriate only if there is no other adequate remedy.

4

In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as

binding precedent the decisions of the former Fifth Circuit handed down before October 1, 1981.

6

See Lee v. Hughes, 145 F.3d 1272, 1275 (11th Cir. 1998). The remedy for

employment discrimination is to sue the discriminating employer, not the

investigating agency. Even if a cause of action could be asserted, the individual

defendants are protected by qualified immunity because nothing they did or failed

to do violated any constitutional right of Irwin’s, let alone a clearly established

one. See Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009).

Irwin’s claims against Florida International University, Florida’s

Commission on Human Rights, and its Departments of Education, Labor, and Law

Enforcement are barred by the Eleventh Amendment, as are his claims against

individual state defendants in their official capacities. Scott v. Taylor, 405 F.3d

1251, 1255 (11th Cir. 2005). Furthermore, the state agencies are not “persons”

who can be sued under § 1983. See Edwards v. Wallace Cmty. Coll., 49 F.3d

1517, 1524 (11th Cir. 1995). Qualified immunity protects the state officials from

liability in their individual capacities, because they did not violate any clearly

established constitutional right of Irwin’s. See Oliver, 586 F.3d at 904. Irwin has

no constitutionally protected privacy interest in the confidentiality of his arrest

record, especially where—as here—state law not only permits but indeed requires

its disclosure. See Fla. Stat. § 943.059(4)(a)(6); cf. Tosh v. Buddies Supermarkets,

Inc., 482 F.2d 329, 332 (5th Cir. 1973) (the Constitution does not bar a state

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agency from releasing arrest records to those who have a “legitimate need” for the

information).

Irwin’s Title VII claim against the Miami-Dade Schools was properly

dismissed. Waiver of the exhaustion requirements, as the district court pointed out,

would have been pointless because there was no evidence supporting Irwin’s

claims of discrimination. Irwin never identified any women or minority applicants

who were hired as teachers despite failing to disclose an arrest record. See

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (Title VII plaintiff must

show comparator employees were treated more leniently despite similar

misconduct). Nor did he allege, as required for an ADEA claim, that he was

passed over in favor of a younger person. See Chapman v. AI Transp., 229 F.3d

1012, 1024 (11th Cir. 2000) (en banc). The lack of evidence for discrimination is

likewise fatal to Irwin’s § 1983 claims against the school board and the individual

school defendants. Irwin cannot establish an equal protection violation because he

failed to show that others similarly situated were treated differently. His due

process rights were not violated because, whether as a job applicant or as a newly

hired probationary employee, he enjoyed no state-law property right in his

employment. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576–78,

92 S.Ct. 2701, 2708–10 (1972); McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir.

8

1994) (en banc). Irwin’s First Amendment rights were not violated because his

speech, which concerned only his own employment grievances, did not address a

matter of public concern and was not constitutionally protected. See Tindal v.

Montgomery County Comm’n, 32 F.3d 1535, 1539–40 (11th Cir. 1994). In any

case, Irwin has not shown that any defendant prevented him from airing those

grievances or retaliated against him for doing so. Irwin’s various state-law tort

claims also fail because he has not established that any defendant breached any

duty owed to him.

The district court properly granted either dismissal or summary judgment

against Irwin on all of his claims against all defendants, and we find no reversible

error.5

AFFIRMED.

5

The district court also did not err in denying Irwin leave to amend his complaint, given

that the additional claims he sought to add would have failed as a matter of law for several of the

same reasons discussed above.

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