Chabad Chayil, Inc. v. The School Board of Miami-Dade County Florida

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10619

____________________

CHABAD CHAYIL, INC.,

Plaintiff-Appellant,

versus

THE SCHOOL BOARD OF

MIAMI-DADE COUNTY, FLORIDA,

and MIAMI-DADE COUNTY, FLORIDA,

OFFICE OF INSPECTOR GENERAL,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cv-21084-RNS

____________________

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2 Opinion of the Court 21-10619

Before NEWSOM and MARCUS, Circuit Judges, and COVINGTON,∗

District Judge.

COVINGTON, District Judge:

In 2019, following a government investigation into an

afterschool program run by Plaintiff Chabad Chayil, Inc.,

Defendant Miami-Dade County Public Schools (“MDCPS”) barred

Chabad from continuing to use its facilities. Chabad sued both

MDCPS and the investigating authority—Miami-Dade County’s

Office of Inspector General (“OIG”)—for alleged violations of its

federal constitutional rights. The district court dismissed those

claims with prejudice and without leave to amend, and Chabad

appealed. Following careful consideration and oral argument, we

affirm.

I

According to the amended complaint, Chabad is a non-profit

organization that runs numerous programs for the Jewish

community and wider community in Miami-Dade County. As part

of its programming, Chabad operated a popular afterschool

program—the Community Hebrew Afterschool Program

(“CHAP”)—from 2008 until the end of the 2018-19 school year. By

the time it ceased operations in 2019, CHAP had grown to serve

approximately 200 students at two locations, Aventura Waterways

∗Honorable Virginia M. Covington, United States District Judge for the

Middle District of Florida, sitting by designation.

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21-10619 Opinion of the Court 3

K-8 (“Waterways K-8”) and Virginia A. Boone Highland Oaks

Elementary School (“Boone Elementary”).

Chabad alleged that when it first saw the need for an

afterschool program in 2008, its President, Rabbi Kievman,

approached Dr. Martin Karp, a member of the MDCPS School

Board. Chabad inquired as to how CHAP could utilize MDCPS

facilities, and Dr. Karp directed the organization to Luis Bello, the

principal of Waterways K-8. Bello procured forms from MDCPS’s

Facility Use Office and forwarded them to Chabad. “At Bello’s

direction,” Chabad submitted the forms provided, and MDCPS

approved Chabad’s application for the 2008-09 school year. Chabad

repeated the same process for the 2009-10 school year. Chabad

offered the CHAP program at Waterways K-8 for the 2008-09 and

the 2009-10 school years on a part-time basis.

After obtaining a funding grant, CHAP operated as a full-

time program beginning in the 2010-11 school year and for every

year thereafter. The year it obtained the funding, Chabad

approached Bello about expanding CHAP into a full-time

afterschool program, and Bello gave Chabad a different form to fill

out: an MDCPS Application for Temporary Use of School Building

Facilities of the Miami-Dade County Public Schools—Temporary

Use Agreement (“TUA”). This form was different from the one

CHAP previously filled out during the first two years of its

program.

Under MDCPS policy, school administrators may approve

the temporary use of school facilities for non-school educational,

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4 Opinion of the Court 21-10619

civic, cultural, recreational, artistic, or charitable programs. The

renter must submit a TUA and prepay rental charges unless the fee

is waived by MDCPS officials. MDCPS may waive the rental fee,

but only if the meeting or program is open to the public and offered

free of charge.1

According to Chabad, MDCPS never communicated the fee

waiver policy to Chabad and never informed Chabad that it could

charge fees to its students and in turn pay rental charges to

MDCPS. Similarly, Chabad alleged that the principals at

Waterways K-8 and Boone Elementary requested the yearly fee

waivers for CHAP, and Chabad was unaware that its use of

MDCPS facilities free of charge was contingent upon CHAP

offering its services for free. Nonetheless, Chabad received fee

waivers each year until 2019.

Beginning in approximately 2017, the OIG began

investigating Chabad in response to an anonymous complaint. The

anonymous complaint read in pertinent part:

School board member Dr. Martin Karp and his

assistant, Gerald Bloomstein[,] have aided a religious

organization named Chabad Chayil, which they are

friendly with and participate in their programs by

helping them gain access to using School [Board]

[p]roperty for free under the claim that the

organization does not collect any funds for its services

1 The parties dispute whether MDCPS has an actual written policy on this

point.

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of aftercare. In fact, the organization . . . does charge

[fees] for its services and has been fraudulently filling

out paperwork submitted and accepted by the

[S]chool [B]oard indicating that it does not collect

funds and so gets to use the buildings for no money

at all.

The OIG investigated the claims, with Chabad’s

cooperation, and in June 2019 the OIG sent Chabad a 37-page draft

report of its investigation (the “Draft Report”). Chabad submitted

a response to the Draft Report in July 2019, and the OIG published

its Final Report in September 2019.

Chabad claims that both Reports were legally and factually

inaccurate, biased, misguided, and prejudicial. Namely, Chabad

takes issue with OIG’s accusations that (1) Chabad made

misrepresentations on its TUAs in order to gain free use of MDCPS

facilities; (2) Dr. Karp and his chief of staff pressured MDCPS staff

into approving Chabad’s applications and fee waivers; (3) Chabad

circumvented the School Board’s process for having an afterschool

program at a MDCPS facility; (4) Chabad improperly operated

CHAP without the required state licensing; and (5) it violated state

law by failing to do background checks on CHAP staff.

According to the amended complaint, MDCPS allowed

Chabad to continue using school facilities for free during the

pendency of the OIG’s investigation. During this time, Chabad

used the school board’s online reservation system to reserve space

at Waterways K-8 and Boone Elementary to operate CHAP for the

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2019-20 school year. Chabad alleged that “one day before the start

of the 2019-20 school year,” MDCPS Chief Financial Officer Ron

Steiger informed Chabad that, based on the Draft Report, it would

not be permitted to use MDCPS facilities for the 2019-20 school

year. Chabad objected to having its application denied on the basis

of a Draft Report and before it had the chance to submit a response.

Chabad further alleged that “during this same period,

Chabad Chayil’s counsel encountered [MDCPS Superintendent

Alberto Carvalho] at a charitable event and Carvalho assured him

that MDCPS would work out an accommodation with Chabad

Chayil.” However, once the OIG issued its Final Report, MDCPS

formally denied Chabad’s online space reservation and “[d]espite

numerous assurances by Carvalho that an accommodation for

CHAP would be worked out, MDCPS, through Carvalho and

Steiger[,] eventually told Chabad Chayil that it would never allow

Chabad Chayil to use MDCPS facilities because the OIG’s Final

Report found that Chabad Chayil made misrepresentations on its

TUAs.”

Based upon these allegations, Chabad brought the following

claims against MDCPS alone: (1) violation of the “Free Expression

Clause of the First Amendment” pursuant to 42 U.S.C. § 1983

(Count II); (2) violation of various provisions of the Florida

Constitution; and (3) violations of Florida state law. Chabad

brought the following claims against both MDCPS and OIG

pursuant to Section 1983: (1) violation of its First Amendment right

to freely exercise its religion (Count I); (2) violation of its equal

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21-10619 Opinion of the Court 7

protection rights under the Fourteenth Amendment (Count III);

and (3) deprivation of its right to procedural due process under the

Fourteenth Amendment (Count IV).2 Chabad also sought

declaratory and injunctive relief.

MDCPS and OIG filed separate motions to dismiss. The

district court dismissed all four of Chabad’s federal constitutional

claims against MDCPS because it had failed to allege facts

sufficiently demonstrating that any of the identified School Board

officials had final policymaking authority as required to support

liability under Monell v. Department of Social Services, 436 U.S.

658 (1978). The district court dismissed the Section 1983 Free

Exercise claim against OIG for similar reasons, namely, for failure

to allege facts establishing an official OIG policy or custom that

would render OIG liable for the alleged constitutional violation.

The district court further dismissed Chabad’s Equal Protection and

Due Process claims on the merits.

The district court also denied Chabad leave to further

amend its complaint, finding Chabad’s request for leave to amend

“both procedurally deficient and lacking in substantive support.”

Finally, considering its dismissal of the federal claims, the district

court refused to exercise supplemental jurisdiction over the state-

law claims. Having dismissed the amended complaint in its

entirety, the district court closed the case. This appeal followed.

2 Chabad also brought a procedural due process claim based on the Florida

Constitution against both Defendants.

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8 Opinion of the Court 21-10619

II

We review the grant of a motion to dismiss under Rule

12(b)(6) de novo, accepting the allegations in the complaint as true

and construing them in the light most favorable to the plaintiff.

Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir.

2004). We review a district court’s denial of leave to amend a

complaint for an abuse of discretion. Coventry First, LLC v.

McCarty, 605 F.3d 865, 869 (11th Cir. 2010).

III

A. Claims against MDCPS

MDCPS may only be held liable where “the action that is

alleged to be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers.” Monell, 436 U.S. at 690. “[I]t

is when execution of a government’s policy or custom, whether

made by its lawmakers or by those whose edicts or acts may fairly

be said to represent official policy, inflicts the injury that the

government as an entity is responsible under [Section] 1983.” Id. at

694.

A plaintiff can establish municipal liability under Monell in

three ways: (1) identifying an official policy; (2) identifying an

unofficial custom or widespread practice that is so permanent and

well settled as to constitute a custom and usage with the force of

law; or (3) identifying a municipal official with final policymaking

authority whose decision violated the plaintiff’s constitutional

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rights. See Cuesta v. Sch. Bd. of Miami-Dade Cnty., 285 F.3d 962,

966-68 (11th Cir. 2002). Chabad does not contend that MDCPS has

an official policy or a widespread practice of constitutional

violations, but rather that the single decision to prevent Chabad

from using MDCPS facilities violated Chabad’s constitutional

rights. See Martinez v. City of Opa-Locka, 971 F.2d 708, 713 (11th

Cir. 1992) (“[A] single decision by an official policymaker can

establish the existence of an unconstitutional municipal policy.”).

We have set forth several guiding principles to evaluate whether

the decision of a single official is sufficient to give rise to municipal

liability, among them:

(1) Municipalities have section 1983 liability only for

acts officially sanctioned or ordered by the

municipality. (2) Only those municipal officials who

have final policymaking authority may subject the

municipality to section 1983 liability for their actions.

(3) The determination of whether or not a particular

official has final policymaking authority is governed

by state law, including valid local ordinances and

regulations. (4) The challenged action must have

been taken pursuant to a policy adopted by the official

or officials responsible for making policy in that

particular area of the city's business, as determined by

state law.

Id. (internal citations and quotation marks omitted).

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Here, Chabad alleges (1) that Superintendent Carvalho’s

“single . . . decision” to prevent it from using MDCPS’s facilities for

its after-school programs violated its constitutional rights and (2)

that Superintendent Carvalho had the requisite “final policymaking

authority” over school-facility usage. See id. With respect to the

latter issue, Chabad’s complaint says only that Carvalho was

“responsible for the administration and management of MDCPS as

set out in Fla. Stat. § 1001.51 and [was] a final decision maker of

MDCPS.” Doc. 27 ¶ 14. Neither that conclusory assertion nor the

embedded statutory citation is sufficient to show that Carvalho had

final policymaking authority over school-facility usage.

The standard that governs the Monell issue here is

straightforward and uncontroversial: “[T]his Court’s decisions

have consistently recognized and given effect to the principle that

a municipal official does not have final policymaking authority

over a particular subject matter when that official’s decisions are

subject to meaningful administrative review.” Morro v. City of

Birmingham, 117 F.3d 508, 514 (11th Cir. 1997) (collecting cases).

The question, therefore, is whether, as Chabad asserts, Carvalho

had “unreviewable” authority over school property. Reply Br. at 5.

Chabad offers no support for that conclusory assertion, and we can

find none in the applicable Florida law. To the contrary, whatever

property-related policymaking authority a school superintendent

has is subject to the school board’s “meaningful” review—and,

accordingly, that it is not “final” for Monell purposes.

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Nothing in either § 1001.51 or its neighboring provisions

gives local school superintendents “final policymaking authority”

with respect to school facilities. A review of the statutes confirms

what courts applying Florida law have long concluded: “By statute,

the school board is the policy-making body for the school district,

while the superintendent is the chief executive officer of the school

board and the chief administrator of the school district.” Greene v.

School Bd. of Hamilton Cnty., 444 So.2d 500, 501 (Fla. Dist. Ct.

App. 1984) (emphasis added); see also Fernandez v. School Bd. of

Miami-Dade Cnty., Fla., No. 15-21915-CIV, 2015 WL 9474616, at

*4 (S.D. Fla. Dec. 29, 2015) (explaining that “the actual School

Board itself [is] the only entity

with final policymaking authority for the purposes of stating a

claim for relief under Monell”); Fla. AGO 96-13 (Fla. A.G. Op.)

(emphasizing Greene’s “policy-making body” language and

generally recognizing the school board’s preeminence in school-

district governance).

Chabad cites only Fla. Stat. § 1001.51(4), which provides

that, among a superintendent’s other powers, he or she acts for the

school board “as custodian of school property.” Despite Chabad’s

reliance on § 1001.51(4), the quoted language suggests that the

superintendent is effectively the school board’s agent, and that it is

the board—not the superintendent—that has ultimate (i.e., “final”)

authority. Cf. Board of Pub. Instruction for Nassau Cnty. v.

Billings, 15 Fla. 686 (1876) (holding that where a superintendent

purchased land for school purposes without the school board’s

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consent and approval, the board had the authority to void the deal).

Moreover, and in just the same vein, § 1001.51 states that in

carrying out his duties, the superintendent “shall advise and

counsel with the district school board.” Fla. Stat. § 1001.51. That

language indicates, at the very minimum, that the superintendent

must discharge his responsibilities in conjunction with the school

board—not alone. 3

Nearly everything in Chapter 1001 of the Florida Statutes

undermines Chabad’s contention that Superintendent Carvalho

has Monell-qualifying “final policymaking authority.” Take, for

instance, § 1001.33, which states that “[e]xcept as otherwise

provided by law, all public schools conducted within the district

shall be under the direction and control of the district school board

with the district superintendent as executive officer.” Fla. Stat. §

1001.33. Section 1001.33’s language—particularly its recognition

that the district is “under the direction and control” of the school

board—strongly suggests that the board is ultimately in charge of

school-district policy.

Working through Chapter 1001’s provisions, we come next

to § 1001.40. That section flatly states (among other things) that

3 The final sentence of § 1001.51’s preamble seems to confirm that

understanding. That provision, which states that “[i]t shall be presumed that

. . . the [superintendent’s] recommendations, nominations, and proposals . . .

[are] not contrary to the action taken by the district school board,” Fla. Stat. §

1001.51, at the very least implies that the board retains the authority to reject

the superintendent’s “recommendations.”

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“[t]he governing body of each school district shall be a district

school board.” Fla. Stat. § 1001.40.

Next up, § 1001.41 provides that the “school board, after

considering recommendations submitted by the district school

superintendent, shall exercise [an enumerated list of] general

powers.” Id. § 1001.41. That language—referring to

“recommendations” that the superintendent makes to the board—

likewise indicates that it is in the board itself that final policymaking

authority ultimately resides. Section 1001.49 is similar, repeatedly

stating that the superintendent’s role is to make

“recommend[ations]” for the board’s consideration and approval.

See, e.g., id. at § 1001.49(2)–(5).

Moving on, §§ 1001.42 and 1001.43 are more specific—and

seemingly in ways that bear on the particular issue in this case. The

former says, among other things, that the school board “control[s]

school property and convey[s] the title to real and personal

property,” and the latter that the board can “adopt policies

providing for management of the physical campus and its environs

….” Id. §§ 1001.42, 1001.43.

Based on the statutory scheme as a whole, it seems clear that

the school board is ultimately in charge of school-district policy and

that the superintendent acts, in effect, as the school board’s agent—

making recommendations to the board, executing policies that the

board adopts, etc. It also seems clear that while the superintendent

has day-to-day operational control—including “custodia[l]” control

of school property under § 1001.51(4)—the school board retains the

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ultimate authority to review and reverse any of the

superintendent’s decisions that it disapproves. Accordingly, it is the

school board—not the superintendent—that has the “final

policymaking authority” required under Monell.

The district court determined that Chabad failed to allege

sufficient facts to allow the court to “infer that any of the

superintendent’s complained of actions fell within the contours” of

his final policymaking authority. We agree.4 Because Chabad failed

to sufficiently allege the elements of Monell liability as to MDCPS,

we affirm the district court’s dismissal of Chabad’s Section 1983

claims against MDCPS.

B. Claims against the OIG

By way of reminder, Chabad asserted Section 1983 claims

against the OIG for (1) violating its right to free exercise of religion

(the “Free Exercise claim”); (2) violating its right to equal

protection when the OIG “singled it out for investigation” (the

“Equal Protection claim”); and (3) failing to provide Chabad with

procedural due process throughout the investigation (the “Due

Process claim”). The district court dismissed the Free Exercise

claim against OIG because Chabad failed to provide allegations

that any complained-of free-exercise violation resulted from an

official custom or policy of the OIG. It dismissed the Equal

4 For the reasons explained in its dismissal order, the district court was correct

to conclude that Chabad failed to sufficiently allege that any of the other

named MDCPS officials exercised final policymaking authority for MDCPS.

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Protection claim for failing to set forth facts establishing any valid

comparators whom the OIG treated differently than Chabad. The

district court dismissed Chabad’s Due Process claim because (1)

Chabad failed to sufficiently allege any concrete harm associated

with its alleged reputational injury, and (2) even if it did allege such

concrete harm, it failed to allege facts showing that the OIG was

responsible for that harm.

As an initial matter, the parties hotly dispute whether the

district court properly credited the contents of the OIG’s Draft

Report and Final Report, which Chabad attached to its amended

complaint. It is well settled that “[i]n ruling upon a motion to

dismiss, the district court may consider an extrinsic document if it

is (1) central to the plaintiff’s claim, and (2) its authenticity is not

challenged.” Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs.

for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir.

2010). And “when the exhibits contradict the general and

conclusory allegations of the pleading, the exhibits govern.” Griffin

Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007).

A careful review of the district court’s order, however,

reveals that, in ruling on Chabad’s claims against the OIG, it relied

on the Reports only to establish the fact that the OIG initiated its

investigation in response to an anonymous complaint about

Chabad and to reference the accusations contained in that

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anonymous complaint. 5 The district court did not err in doing so

because Chabad does not dispute either fact and, indeed, cites the

substance of the anonymous complaint in its own pleading. We

now address each of Chabad’s Section 1983 claims against the OIG.

1. Free Exercise Claim

The OIG, like MDCPS, is an agency of a political subdivision

organized under the laws of the State of Florida. Chabad must

therefore establish that the OIG’s alleged constitutional violations

resulted from an official policy, a custom so well settled it has the

force of law, or the decision of an official with final policymaking

authority. See Monell, 436 U.S. at 690-94; Cuesta, 285 F.3d at 966,

968.

On appeal, Chabad specifically disclaims “using some

widespread policy standard to prove the OIG’s municipal liability”

but instead argues that “the institution of the OIG took

unconstitutional actions.” We agree with the district court that

Chabad failed to allege facts demonstrating that any particular

individual is a final policymaker for the OIG. That leaves the

question of whether Chabad has sufficiently alleged an official

5 True, the district court seemed to credit in its factual recitation certain other

facts from the Reports. But any facts beyond the existence and content of the

anonymous complaint did not impact the court’s analysis. Moreover, in

analyzing the claims on appeal, we have taken the allegations in the amended

complaint as true and credited the Reports only to the extent that the OIG

began its investigation of Chabad in 2017 in response to an anonymous

complaint and the contents of that anonymous complaint.

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policy or widespread custom of the OIG that would render it liable

for the alleged violations of Chabad’s right to freely exercise its

religion. The answer is no.

The amended complaint’s allegations about the OIG’s

investigation and Chabad’s religion are limited to the following:

Throughout its investigation, the OIG, in violation of

the Free Exercise Clause, exhibited bias against

Chabad Chayil based on its teaching of religion. The

OIG pressured numerous people that it was

interviewing to say that the fact that Chabad Chayil

was teaching Jewish religious topics . . . was violating

some policy, even though the OIG had no basis to

believe that anything Chabad Chayil did was against

any policy. . . .

The OIG had no basis to believe that the religious

orientation of CHAP violated any MDCPS policy.

Yet, the OIG repeatedly pushed MDCPS

administrators and others to say that there was

something wrong with Chabad Chayil teaching

religious topics in its CHAP program.

This is insufficient. The unspecified acts of unidentified OIG

investigators in this single case do not plausibly allege an official

policy of the OIG, or even a custom that rises to the force of law.

See Craig v. Floyd Cnty., 643 F.3d 1306, 1310 (11th Cir. 2011)

(explaining that if plaintiffs cannot plead facts demonstrating an

official policy, they must plead facts demonstrating a custom that

is so “longstanding and widespread . . . [it] is deemed authorized by

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the policymaking officials because they must have known about it

but failed to stop it”).

On appeal, Chabad now focuses on the Final Report as proof

of “OIG’s pervasive First Amendment violations.” We do not

consider arguments raised for the first time on appeal. Access Now,

Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)

(noting our repeated holding that issues not raised before the

district court and raised for the first time on appeal “will not be

considered”). What’s more, Chabad never explains how the Final

Report violated its First Amendment rights nor even what those

violations are.

The district court properly dismissed the Free Exercise claim

against the OIG.

2. Equal Protection Claim

In its amended complaint, Chabad claims that OIG violated

the Equal Protection Clause because it investigated Chabad

“specifically because of its religious nature” and “[s]ingled [Chabad]

out for investigation, when numerous other organizations . . .

received fee waivers while charging fees.”

The Equal Protection Clause “is essentially a direction that

all persons similarly situated should be treated alike.” City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). As

Chabad concedes, it proceeded here under a “class of one” equal

protection claim, a “less-developed strand of equal protection

jurisprudence.” Griffin Indus., 496 F.3d at 1200. In a “class of one”

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claim, a plaintiff alleges not that it belongs to a protected class, but

that it is the only entity being treated differently from all other

similarly situated entities. Vill. of Willowbrook v. Olech, 528 U.S.

562, 564 (2000) (per curiam). In order to prevail, a plaintiff must

show that it “has been intentionally treated differently from others

similarly situated and that there is no rational basis for the

difference in treatment.” PBT Real Est., LLC v. Town of Palm

Beach, 988 F.3d 1274, 1285 (11th Cir. 2021).

We apply the similarly situated requirement “with rigor.”

Griffin Indus., 496 F.3d at 1207. The entities being compared “must

be prima facie identical in all relevant respects.” PBT Real Est., 988

F.3d at 1285 (emphasis omitted). A plaintiff must ultimately show

that it and any comparators are “similarly situated ‘in light of all the

factors that would be relevant to an objectively reasonable

governmental decisionmaker.’” Douglas Asphalt Co. v. Qore, Inc.,

541 F.3d 1269, 1275 (11th Cir. 2008) (quoting Griffin Indus., 496

F.3d at 1207); see also Griffin Indus., 496 F.3d at 1207

(“Accordingly, when plaintiffs in ‘class of one’ cases challenge the

outcome of complex, multi-factored government decisionmaking

processes, similarly situated entities must be very similar indeed.”

(internal quotation marks and citation omitted)). 6

6 Chabad argues for the first time on appeal that the complexity of the

government decisionmaking process should have a direct bearing on the

similarity showing. Chabad does not provide any legal authority for its

argument and, in any event, we do not consider issues raised for the first time

on appeal. See Access Now, 385 F.3d at 1331.

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In analyzing Chabad’s equal protection allegations, the

district court identified a key problem—the OIG’s investigation

into Chabad was instigated by an anonymous complaint alleging

that Chabad was improperly receiving fee waivers from MDCPS.

Chabad fails to allege that any of the proposed comparators were

also the subject of such a complaint. This fact alone clearly

distinguishes Chabad from the other entities that allegedly

collected monies while also receiving fee waivers from MDCPS.

See Lewis v. City of Union City, 918 F.3d 1213, 1227 (11th Cir.

2019) (“[A] plaintiff and her comparators must be sufficiently

similar, in an objective sense, that they cannot reasonably be

distinguished.” (citation and internal quotation marks omitted));

Griffin Indus., 496 F.3d at 1203 (explaining that in evaluating “class

of one” claims, courts must consider “the full variety of factors that

an objectively reasonable governmental decisionmaker would

have found relevant in making the challenged decision”).

Thus, Chabad did not demonstrate that its comparators

were similarly situated in all relevant respects. See PBT Real Est.,

988 F.3d at 1285. The district court correctly dismissed the Equal

Protection claim against the OIG.

3. Due Process Claim

Chabad alleged in its amended complaint that the OIG

thwarted its “liberty interest in its reputation by failing to provide

Chabad Chayil with due process throughout its investigation.”

According to Chabad, the OIG refused to provide Chabad with an

adequate opportunity to respond to the allegations in the Draft

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Report and knowingly included false and defamatory statements in

the Final Report that damaged Chabad’s reputation.

The Supreme Court has held that injury to reputation, by

itself, does not constitute the deprivation of a liberty or property

interest protected under the Fourteenth Amendment. Paul v.

Davis, 424 U.S. 693, 701–02, 712 (1976). The Court in Paul

explained that, to invoke the procedural protections of the Due

Process Clause, a plaintiff would need to establish more than a

mere defamation claim. Id. at 706; see also Siegert v. Gilley, 500

U.S. 226, 233 (1991) (“Defamation, by itself, is a tort actionable

under the laws of most States, but not a constitutional

deprivation.”).

Thus, to establish a valid claim for the deprivation of a

liberty interest based on reputational harm, a plaintiff must satisfy

what has come to be known as the “stigma-plus” test. Behrens v.

Regier, 422 F.3d 1255, 1259 (11th Cir. 2005). Under this test, “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.” Cannon v. City of West Palm Beach, 250

F.3d 1299, 1302 (11th Cir. 2001) (citing Paul, 424 U.S. at 701–02).

Therefore, to establish “a liberty interest sufficient to implicate the

[F]ourteenth [A]mendment safeguards, the individual must be not

only stigmatized but also stigmatized in connection with a denial

of a right or status previously recognized under state law.”

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22 Opinion of the Court 21-10619

Behrens, 422 F.3d at 1260; see also Cypress Ins. Co. v. Clark, 144

F.3d 1435, 1436 (11th Cir. 1998) (“This rule, labeled the ‘stigma-

plus’ standard, requires a plaintiff to show that the government

official’s conduct deprived the plaintiff of a previously recognized

property or liberty interest in addition to damaging the plaintiff’s

reputation.”). Actionable deprivation of a property interest

requires “a legitimate claim of entitlement to it.” Bd. of Regents v.

Roth, 408 U.S. 564, 577 (1972). An “abstract need or desire” for, or

a “unilateral expectation” of, a property interest is not enough. Id.

That legal entitlement must be a “right or status [that] has been

previously recognized and protected under state law.” Behrens,

422 F.3d at 1261.

None of Chabad’s arguments in support of its Due Process

claim hold water. Chabad first points to Marrero v. City of Hialeah,

625 F.2d 499 (5th Cir. 1980), and a line of cases emanating from

Marrero holding that allegations of harm to business reputation

alone can sometimes rise to the level of a constitutional

deprivation. Our Court, however, has expressly disclaimed that

line of case law in light of Siegert v. Gilley, 500 U.S. 226 (1991). See

Cypress Ins. Co., 144 F.3d at 1438 (“The Supreme Court’s message

in Siegert is clear and unmistakable: Section 1983 did not make

every tort committed by a state official a violation of constitutional

rights. In particular, damages to a plaintiff’s business reputation are

only recoverable in a section 1983 action if those damages were

incurred as a result of government action significantly altering the

plaintiff’s constitutionally recognized legal rights.”).

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Changing tactics, Chabad also argues that it had two

protected property interests: (1) an informal agreement with

MDCPS that Chabad would be allowed to use school facilities for

CHAP until the conclusion of the OIG investigation; and (2) the

right to have Chabad’s applications considered by MDCPS. Neither

provide Chabad a property right recognized under state law. The

record reflects that, at the bottom of the TUA Chabad filled out

each year, was language advising that “[b]efore this agreement

becomes official it must bear the designated signatures” of both the

principal of the school and the superintendent. And in Florida,

contractual rights with a government agency require a written

agreement that has been approved by the governmental entity. See

Pan–Am Tobacco Corp. v. Dep’t of Corrs., 471 So. 2d 4, 5–6 (Fla.

1984) (recognizing an exception to sovereign immunity when state

entities enter into contracts but cautioning that this waiver of

immunity was “applicable only to suits on express, written

contracts into which the state agency has statutory authority to

enter”); City of Orlando v. W. Orange Country Club, Inc., 9 So. 3d

1268, 1272–73 (Fla. 5th DCA 2009) (noting that waiver of sovereign

immunity on contract claims would logically only apply if the

written contract is “properly approved by or on behalf of the

governmental entity sought to be held liable”). It is undisputed that

Chabad does not have a signed, written agreement to use MDCPS

facilities for the 2019-2020 school year or for any year thereafter.

Nor has Chabad pointed to any legal authority providing that it has

a “right” to have a local school board consider its applications.

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24 Opinion of the Court 21-10619

Thus, Chabad has not demonstrated “stigma plus” a legal

entitlement.

Moreover, we agree with the district court that even if

Chabad had properly demonstrated stigma plus another concrete

harm, it cannot show that the OIG caused that harm. To impose

liability under Section 1983, the government entity’s actions must

be the “moving force” behind the deprivation of a constitutional

right. Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,

403–04 (1997); see also City of Canton v. Harris, 489 U.S. 378, 385

(1989) (“[O]ur first inquiry in any case alleging municipal liability

under [Section] 1983 is the question whether there is a direct causal

link between a municipal policy or custom and the alleged

constitutional deprivation.”). A defendant’s actions cannot be the

moving force behind a violation where the actions of another,

independent decisionmaker breaks the chain of causation. Caruth

v. Bentley, 942 F.3d 1047, 1056 (11th Cir. 2019).

Here, the OIG’s role is to conduct investigations and issue

reports. 7 The OIG does not have the authority to refuse any group

permission to use school board property–that power lies with

MDCPS. Thus, even if the OIG did act in accordance with some

7 The OIG provides inspector general services to MDCPS pursuant to an

Interlocal Agreement between Miami-Dade County and the county’s School

Board. Pursuant to that agreement, the OIG possesses the authority to

“investigate [MDCPS] affairs, including the power to review past, present, and

proposed programs, accounts, records, contracts and transactions.”

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official policy or custom, that policy or custom did not cause

Chabad’s harm.

The district court properly dismissed Chabad’s Due Process

claim.

C. Leave to Amend

Here, Chabad raised its request to file a second amended

complaint at the end of its responses to the Defendants’ motions to

dismiss. This is procedurally improper. “[W]here a request for

leave to file an amended complaint simply is imbedded within an

opposition memorandum, the issue has not been raised properly.”

Newton v. Duke Energy Fla., LLC, 895 F.3d 1270, 1277 (11th Cir.

2018); see also Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999)

(explaining that a plaintiff wishing to amend its complaint must file

a separate motion for leave to amend and either set forth the

substance of the proposed amendment or attach a copy of the

amended pleading). The district court was well within its discretion

to deny Chabad’s perfunctory request to further amend its

complaint.

IV

For the reasons stated, we conclude that the district court

properly dismissed all of Chabad’s Section 1983 claims against the

MDCPS and OIG, and we affirm the dismissal of those claims

without leave to amend.

AFFIRMED.