Michael Hogan v. City of Fort Walton Beach

Case: 19-12294 Date Filed: 06/01/2020 Page: 1 of 16

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-12294

Non-Argument Calendar

________________________

D.C. Docket No. 3:18-cv-01332-MCR-HTC

MICHAEL HOGAN,

Plaintiff-Appellant,

versus

CITY OF FORT WALTON BEACH,

EDWARD J. RYAN,

in his official and individual capacity,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(June 1, 2020)

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Before BRANCH, LUCK, and FAY, Circuit Judges.

PER CURIAM:

Michael Hogan appeals the district court’s orders dismissing his complaint

and denying his motion for reconsideration in favor of the City of Fort Walton Beach

and its former police chief, Edward J. Ryan. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Hogan worked as a police officer for the City of Fort Walton Beach. In 2006,

one of Hogan’s arrestees was found lying in a pool of blood in a cell at the police

station. Sergeant Tom Matz was supposed to be watching the arrestee. Hogan asked

Matz what happened, and Matz said, “I didn’t see it.” As a joke, Hogan later put the

name “Det. Sgt. Tom ‘I didn’t see it’ Matz” in the signature block of a formal legal

document. The joke went unnoticed until after the document had already been filed

in court. Hogan was disciplined for the joke and then resumed his normal duties as

an officer.

In July 2016, Hogan applied for an open captain position with the city police

department. Hogan was interviewed by Ryan, the newly sworn chief of police. Ryan

asked Hogan about his disciplinary history but did not ask about the 2006 incident

with Matz. Ryan ultimately hired Tracy Hart for the position.

Shortly after, Hart called Hogan to meet with Ryan at the police department.

At the meeting, Ryan served Hogan with a notice of disciplinary hearing scheduled

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for the following day. Hogan appeared for the hearing with a union legal

representative and was immediately terminated. Hogan stated that his rights had

been violated and demanded the basis for his termination. Ryan said that the

decision was made based on Hogan’s 2006 disciplinary file, a letter that Ryan had

sent to the state attorney’s office, and an opinion letter he received in response.

Hogan asked for a copy of the relied-upon documents, and Ryan said he would

provide them. Two days later, Hogan received the documents and filed a request for

a disciplinary appeal hearing.

Ryan’s letter to the state attorney’s office solicited an opinion regarding

Hogan’s capacity to serve as a witness in criminal proceedings. Referring to the

2006 incident with Matz, Ryan wrote that Hogan had a “substantiated case of making

false statements concerning an employee during an internal investigation.” In

response, the state attorney’s office wrote an opinion letter that essentially rendered

Hogan Giglio-impaired. 1 The opinion letter remained in Hogan’s personnel file, and

he was no longer able to work in law enforcement as a result.

Hogan appeared for his disciplinary appeal hearing together with his union

legal representative. Also in attendance were Ryan, Hart, and a human resources

1

In Giglio v. United States, 405 U.S. 150, 154 (1972), the Supreme Court held that a

criminal defendant has a right to be informed of evidence affecting a government witness’s

credibility. Because law enforcement officers are typically called upon to serve as witnesses in

criminal proceedings, where there is evidence calling into question an officer’s credibility the

officer is sometimes referred to as being Giglio-impaired. Cf., e.g., Nguyen v. Dep’t of Homeland

Sec., 737 F.3d 711, 712, 715–16 (Fed. Cir. 2013).

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director. Hogan asked whether they had reconsidered his termination, but he was

told “no” and informed that he could not ask any further questions. Instead, Hogan

was permitted only to present his side of the story. Hogan asked Ryan about a notice

of intent to convene a complaint review board 2 but received no response. At the end

of the hearing, Hogan’s termination was upheld.

Later, Hogan again requested that a complaint review board be convened.

Acting in Ryan’s absence, Hart denied the request, explaining that Hogan was “not

under investigation, there were no external complaints, there was no internal

administrative investigation or interrogation[,] and there was no recommendation

through the chain of command for discipline.” The state attorney’s office likewise

refused to discuss Hogan’s termination with him.

Hogan sought a writ of mandamus in state court directing Ryan to convene a

complaint review board. The state court ruled that Hogan had no clear legal right to

have a complaint review board convened and dismissed Hogan’s complaint without

prejudice. Hogan then filed the complaint in this case in state court seeking a

declaratory judgment and damages against both the city and Ryan pursuant to 42

U.S.C. §§ 1983 and 1985(3). Count one asserted a procedural due process violation

2

A complaint review board, empaneled pursuant to section 112.532(2), Florida Statutes,

serves to “provid[e] a law enforcement officer with a means of vindicating his actions and his

reputation against unjust and unjustifiable claims made against him by persons outside the agency

which employs him.” Migliore v. City of Lauderhill, 415 So. 2d 62, 64 (Fla. 4th DCA 1982),

aff’d, 431 So. 2d 986 (Fla. 1983) (emphasis added).

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of Hogan’s property right in his employment. Count two asserted a violation of

Hogan’s “Fourteenth Amendment substantive due process rights.” Specifically,

Hogan asserted that the city and Ryan “may not deprive [him] of fundamental rights

under the constitution” and that “[t]he constitutional protections afforded to [him]

are such that he has a property interest in his employment and good name.” Finally,

count seven asserted a conspiracy to violate Hogan’s civil rights. 3

The city and Ryan removed Hogan’s action to the Northern District of Florida

and moved to dismiss, arguing in part that Hogan failed to identify any protected

rights for his substantive due process claim. In response, Hogan admitted that “there

is no substantive right to a particular employment position” but claimed that “the

stigma to which [he] has been subjected, undermining his right to any position in his

chosen profession, is in fact protected by substantive due process.” The city and

Ryan then sought leave to file a limited reply, explaining that they did not brief

Hogan’s asserted liberty interest because that interest was not pleaded in Hogan’s

complaint. The district court agreed that Hogan had failed to plead a liberty interest

and permitted the city and Ryan to file a reply.

The district court later granted the city and Ryan’s motion to dismiss with

prejudice. The district court concluded that Hogan failed to state a procedural due

process claim in count one because “adequate state remedies existed” to protect his

3

The remaining counts were voluntarily dismissed and are not at issue on appeal.

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asserted interest. For instance, the district court noted that “a post-termination

administrative appeal was available to Hogan” and that “Hogan pursued this state

administrative remedy, by requesting an appeal, attending an appeal hearing with a

legal representative, and presenting arguments challenging his termination at the

appeal hearing.” The district court also noted that Hogan could have sought

“certiorari review” in a Florida state court.

As for count two, the district court concluded that Hogan did not adequately

plead a substantive due process claim based on a liberty right. The district court

determined that Hogan instead pleaded “a substantive due process claim based on

his alleged property right to employment.” The district court concluded that, as

pleaded, Hogan’s claim was “clearly foreclosed” by McKinney v. Pate, 20 F.3d

1550, 1560 (11th Cir. 1994) (en banc), in which this court held that “an employee

with a property right in employment is protected only by the procedural component

of the Due Process Clause, not its substantive component.”

Finally, the district court concluded that Hogan failed to state a § 1985(3)4

conspiracy claim in count seven because he “failed to identify an underlying

constitutional right that was violated.” The district court further concluded that

4

Hogan’s complaint did not specify which subsection of § 1985 his claim was brought

under. The district court concluded that “neither . . . § 1985(1) nor (2), which prohibit conspiracies

to interfere with the duties of an officer of the United States and conspiracies to obstruct justice by

intimidating or threatening any party, witness, or juror, [we]re applicable.” We agree with the

district court’s assessment.

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Hogan failed to state a claim “because [Hogan’s complaint had] no allegations

showing, or even suggesting, racial or class-based discriminatory animus behind the

conspirators’ actions,” which the district court concluded was a requirement for a

§ 1985(3) claim. Moreover, the district court concluded that, “to the extent Hogan’s

§ 1985 claim [wa]s premised on a conspiracy between [the city] and Ryan, or

between any [city] employees, the claim [wa]s barred by the intracorporate

conspiracy doctrine, which provides that ‘a corporation cannot conspire with its

employees, and its employees, when acting in the scope of their employment, cannot

conspire among themselves.’”

Hogan moved for reconsideration or, in the alternative, for leave to amend

count two of his complaint to include a reference to a “‘stigma plus’ liberty interest.”

The district court denied the motion. The district court rejected Hogan’s argument

that it “clearly erred in finding that he failed to adequately allege a substantive due

process claim based on a liberty-based interest.” The district court stated that

“Hogan did not so much as mention a liberty interest in Count II, and his allegations

of a constitutionally protected property interest combined with his general

allegations of reputational harm and Giglio impairment were insufficient to ‘give the

defendant[s] fair notice of what the plaintiff’s claim is and the grounds upon which

it rests.’”

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The district court likewise rejected Hogan’s claim that it “clearly erred in

dismissing Count II with prejudice.” The district court noted that Hogan “did not

seek leave to amend Count II until after [the] case was dismissed” and that it was

“not required to give Hogan leave to amend Count II sua sponte.” Even so, the

district court concluded that any amendment would have been futile, because Hogan

“could not state[] a substantive due process claim based on a ‘stigma-plus’ liberty

interest.” The district court concluded that “a ‘stigma-plus’ claim is only actionable

as a procedural due process claim, not as a substantive due process claim.” The

district court concluded that Hogan’s proposed amendment was both untimely and

futile for the same reasons.

The district court rejected Hogan’s claim that the district court clearly erred

in “considering arguments” in the city and Ryan’s reply to Hogan’s motion to

dismiss. The district court concluded that it was within its discretion to “consider

new arguments or facts in a reply brief” and that “Hogan opened the door” to the

arguments in the city and Ryan’s reply because Hogan did not identify his supposed

liberty interest until he did so in his response to their motion to dismiss. The district

court stated that “Hogan [could not] justifiably argue that he should . . . be allowed

to address [the city and Ryan’s] McKinney arguments, especially when he could

have requested leave to amend his complaint to correct the aforementioned

deficiencies or file a sur-reply to address [their] arguments.”

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Finally, the district court rejected Hogan’s claim that it “erred in dismissing

Count VII for failure to identify an underlying constitutional right that was violated.”

The district court disagreed for the reasons discussed it both of its orders. Moreover,

the district court noted “that it dismissed Count VII on multiple grounds, in addition

to Hogan’s failure to state a violation of an underlying constitutional right,” and that

Hogan “ma[de] no attempt to even address those separate grounds for dismissal in

his . . . motion.”

Hogan appealed both of the district court’s orders.

STANDARD OF REVIEW

“We review the grant of a Rule 12(b)(6) motion to dismiss for failure to state

a claim de novo.” Henley v. Payne, 945 F.3d 1320, 1326 (11th Cir. 2019). We

accept as true the allegations in Hogan’s complaint and construe them in the light

most favorable to Hogan. Id. “We review the decision of the district court to grant

or deny a request for leave to amend for abuse of discretion.” Rosenberg v. Gould,

554 F.3d 962, 965 (11th Cir. 2009). We review the denial of a motion for

reconsideration for an abuse of discretion. Rodriguez v. City of Doral, 863 F.3d

1343, 1349 (11th Cir. 2017).

DISCUSSION

Hogan raises four issues on appeal: (1) whether the district court erred in

dismissing his procedural due process claim in count one; (2) whether the district

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court erred in dismissing his substantive due process claim in count two; (3) whether

the district court erred in dismissing his conspiracy claim in count seven; and (4)

whether the district court abused its discretion in denying Hogan leave to amend.

We address each issue in turn.

Dismissal of Hogan’s Procedural Due Process Claim

The district court dismissed Hogan’s procedural due process claim because it

concluded that Hogan had “adequate state remedies,” such as his post-termination

appeal hearing and certiorari review in a Florida state court. Hogan argues that no

such remedies were available. He argues that his post-termination appeal hearing

was inadequate because “[h]e was shut down and prohibited from asking questions,

and his requests for additional review were ignored.” He also claims that

“[c]ertiorari review was not available” because “there was no record from which

certiorari could be taken.”

To state a § 1983 procedural due process claim, a plaintiff must allege

“constitutionally-inadequate process.” Arrington v. Helms, 438 F.3d 1336, 1347

(11th Cir. 2006) (citation omitted). “[O]nly when the state refuses to provide a

process sufficient to remedy the procedural deprivation does a constitutional

violation actionable under section 1983 arise.” McKinney, 20 F.3d at 1557; see also

Cotton v. Jackson, 216 F.3d 1328, 1331 (11th Cir. 2000) (“[A] section 1983 claim

is not stated unless inadequate state procedures exist to remedy an alleged procedural

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deprivation . . . .”). We agree with the district court that Hogan failed to plead the

lack of adequate state remedies.

Hogan’s disciplinary appeal hearing was an adequate state remedy. As Hogan

admitted in his complaint, he received notice of the basis for his termination.

Moreover, Hogan admitted that he was permitted to (and indeed did) “present facts

and/or information” at the hearing. In other words, he was afforded an opportunity

to present his case. Nothing more is required. While a post-deprivation hearing

must be “meaningful,” see Buxton v. City of Plant City, 871 F.2d 1037, 1042 (11th

Cir. 1989), there is no requirement that the employee be permitted to ask questions.

Instead, “courts have required only that the claimant be accorded notice of the

charges against him and an opportunity ‘to support his allegations by argument

however brief, and, if need be, by proof, however informal.’” Campbell v. Pierce

County, 741 F.2d 1342, 1345 (11th Cir. 1984) (quoting Memphis Light, Gas &

Water Div. v. Craft, 436 U.S. 1, 16 n.17 (1978)).

Certiorari review in a Florida state court was also an adequate state remedy.

McKinney, 20 F.3d at 1563–64 (holding that a defendant had an adequate state

remedy because he could have sought certiorari review in a Florida state court).

Hogan did not plead that this remedy was unavailable to him. Nor could he have.

Although he now argues that “there was no record from which certiorari could be

taken,” that argument is plainly contradicted by his admission that a disciplinary

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appeal hearing took place in which he was afforded an opportunity to present his

case. To the extent Hogan argues that the hearing was not transcribed or otherwise

recorded, he could have sought to prepare a “stipulated statement” of the record or

had a court reporter present at the hearing. See Fla. R. App. P. 9.200(a)(3); Fla. R.

App. P. 9.190(c)(6); see also Fla. R. App. P. 9.200(b)(4) (permitting parties to

prepare “a statement of the evidence or proceedings from the best available means”).

Thus, Hogan has failed to state a procedural due process violation, and the district

court did not err in dismissing count one.

Dismissal of Hogan’s Substantive Due Process Claim

The district court dismissed Hogan’s substantive due process claim in part

because it found that Hogan’s asserted right—a “‘stigma-plus’ liberty interest”—

was not a fundamental right protected by substantive due process. We agree with

the district court that “a ‘stigma-plus’ claim is only actionable as a procedural due

process claim, not as a substantive due process claim.” Our precedent establishes

that stigma-plus claims are analyzed under a procedural due process framework.

Cannon v. City of West Palm Beach, 250 F.3d 1299, 1302 (11th Cir. 2001) (“[A]

plaintiff claiming a deprivation based on defamation by the government must

establish the fact of the defamation “plus” the violation of some more tangible

interest before the plaintiff is entitled to invoke the procedural protections of the Due

Process Clause.” (emphasis added)); Cotton, 216 F.3d at 1330 (“[W]hen reputational

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damage is sustained in connection with a termination of employment, it may give

rise to a procedural due process claim . . . .” (emphasis added)); McKinney, 20 F.3d

at 1555, 1560 (holding that plaintiff’s allegations concerning loss of employment,

including allegations regarding his purported “liberty interest in his good name and

reputation,” only supported a procedural due process claim). Our sister circuits’

precedent establishes the same. See, e.g., Doe v. Mich. Dep’t of State Police, 490

F.3d 491, 502 (6th Cir. 2007) (“Our review of the caselaw has failed to identify any

case that applies the stigma-plus test to a substantive due process claim.”); Segal v.

City of New York, 459 F.3d 207, 213 (2d Cir. 2006) (“[S]tigma plus is a species

within the phylum of procedural due process claims . . . .”). Accordingly, the district

court did not err in dismissing count two.

Dismissal of Hogan’s § 1985(3) Conspiracy Claim

The district court dismissed Hogan’s § 1985(3) conspiracy claim because

Hogan failed to identify an underlying constitutional right that was violated. This

was a sufficient basis for dismissal. See Denney v. City of Albany, 247 F.3d 1172,

1190 (11th Cir. 2001) (“Having concluded that Plaintiffs’ substantive claims fail on

the merits, their conspiracy claim fails as well because Plaintiffs would not have

been ‘deprived of any rights or privilege’ by the Defendants’ allegedly wrongful

acts.”); see also United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 833

(1983) (noting that § 1985(3) “provides no substantial rights itself” and that “[t]he

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rights, privileges, and immunities that § 1985(3) vindicates must be found

elsewhere” (citation omitted)).

Nevertheless, the district court also dismissed Hogan’s conspiracy claim

because the district court concluded that it was “barred by the intracorporate

conspiracy doctrine.” We agree. “The intracorporate conspiracy doctrine holds that

acts of corporate agents are attributed to the corporation itself, thereby negating the

multiplicity of actors necessary for the formation of a conspiracy.” McAndrew v.

Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000) (en banc). “Simply

put, under the doctrine, a corporation cannot conspire with its employees, and its

employees, when acting in the scope of their employment, cannot conspire among

themselves.” Id. The doctrine applies to claims arising under § 1985(3), id. at 1037–

38, and likewise “applies to public entities such as [a city] and its personnel,”

Denney, 247 F.3d at 1190. Although Hogan alleged in a conclusory fashion that the

city and Ryan, “together with others both inside [the city] and outside, intentionally

and unlawfully caused [Hogan] to be terminated in violation of the Fourteenth

Amendment[] . . . and to become Giglio impaired,” Hogan failed to specifically

identify any actors outside the city. 5 Instead, Hogan specifically alleged that it was

the city and Ryan who “conspired to deprive [Hogan] of his property rights in his

5

To be clear, Hogan did not allege that the state attorney was involved in the conspiracy.

Indeed, Hogan alleged that “Ryan misrepresented the facts of [the] 2006 incident when he solicited

the State Attorney’s opinion.”

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employment by knowing of [Hogan’s] closed investigation and causing and/or

permit[ing] an investigation to be re-opened ten (10) years later, in violation of his

constitutional rights and to having him Giglio impaired.” “Our duty to accept the

facts in the complaint as true does not require us to ignore specific factual details of

the pleading in favor of general or conclusory allegations.” Griffin Indus., Inc. v.

Irvin, 496 F.3d 1189, 1205–06 (11th Cir. 2007); see also Fullman v. Graddick, 739

F.2d 553, 557 (11th Cir. 1984) (“A complaint may justifiably be dismissed because

of the conclusory, vague and general nature of the allegations of conspiracy.”).

Accordingly, the district court did not err in dismissing count seven.

Denial of Leave to Amend

The district court denied Hogan leave to amend his complaint because the

district court concluded that his request was untimely and futile. Both were valid

reasons to deny leave to amend. As already noted, Hogan could not assert a

substantive due process claim based on a “‘stigma plus’ liberty interest,” so his

amended complaint would still fail to state a claim. “[A] district court may deny a

motion for leave to amend as futile ‘when the complaint as amended would still be

properly dismissed.’” EEOC v. STME, LLC, 938 F.3d 1305, 1320 (11th Cir. 2019)

(citation omitted). Moreover, Hogan did not seek leave to amend until April 26,

2019—that is, after the district court had already entered judgment dismissing his

complaint and well after the mutually-agreed deadline of December 1, 2018 (which

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the district court adopted in its final scheduling order). Post-judgment, a plaintiff

may seek leave to amend only “if he is granted relief under Rule 59(e) or Rule

60(b)(6).” See United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1361 n.22

(11th Cir. 2006). And a party moving for leave to amend after the expiration of a

scheduling deadline must show “good cause” for why they could not diligently meet

the deadline. See Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418–19 (11th Cir.

1998). Here, Hogan failed to explain why he did not seek leave to amend before the

deadline—for instance, on August 7, 2008, when the district court explicitly

acknowledged that Hogan failed to plead a liberty interest. Thus, the district court

did not abuse its discretion in denying Hogan leave to amend.

CONCLUSION

The district court did not err in dismissing counts one, two, and seven. Nor

did the district court abuse its discretion in denying Hogan leave to amend.

AFFIRMED.

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