Melanie Ortiz v. City of Miami

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11659

Non-Argument Calendar

____________________

MELANIE ORTIZ,

Plaintiff-Appellant,

versus

CITY OF MIAMI,

a Florida municipal corporation,

RODOLFO LLANES,

individually,

JAVIER ORTIZ,

individually,

FABIO SANCHEZ,

individually,

MIAMI FRATERNAL ORDER OF POLICE, et al.,,

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2 Opinion of the Court 22-11659

Defendants-Appellees,

JORGE COLINA, et al.,

Defendants.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cv-25132-RNS

____________________

Before ROSENBAUM, JILL PRYOR, and LAGOA, Circuit Judges.

PER CURIAM:

Melanie Ortiz, a former City of Miami (the “City”) police

officer, appeals the district court’s order dismissing her claims

against the City, the Miami Fraternal Order of Police (the “FOP”),

Rodolfo Llanes, Fabio Sanchez, and Javier Ortiz. Ortiz also appeals

the district court’s order denying her motion for reconsideration.

After careful review, we affirm the dismissal of Ortiz’s claims and

the denial of reconsideration.

I. FACTUAL AND PROCEDURAL HISTORY

Ortiz was employed as a police detective with the City since

at least 2013. During 2013 and 2014, Ortiz was assigned to patrol

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22-11659 Opinion of the Court 3

duty in Little Havana. A collective bargaining agreement between

the City of Miami and the FOP governed Ortiz’s employment. In

December 2016, the Federal Bureau of Investigation arrested sev-

eral City employees, including one police officer and two police

aides, following an investigation into a scheme in which tow-truck

operators would bribe police officers. The City suspended three

police officers in relation to the alleged bribery scheme but made

no arrests. Ortiz was not suspended at that time.

In December 2017, the City’s Internal Affairs Section sum-

moned Ortiz to provide a statement in connection with the bribery

scheme. Ortiz “initially thought that she was being interviewed

regarding what she had observed others do when she had been as-

signed to patrol in Little Havana in 2013–2014.” After Ortiz arrived

at the Internal Affairs office with her unidentified FOP representa-

tive, Sergeant Fabio Sanchez, a City employee, called her FOP rep-

resentative aside for a private conversation. Her FOP representa-

tive then informed her that he would not be able to represent her,

but that Javier Ortiz, the FOP president, would be her representa-

tive.

Melanie Ortiz returned to the Internal Affairs office on De-

cember 16, 2017, and Javier Ortiz served as her FOP representative.

During the meeting, Javier Ortiz denied Melanie Ortiz’s request to

review her file and told her that “[h]er only option to avoid going

to jail—and having her daughter learn about her arrest through the

media—would be to immediately and irrevocably resign.” Javier

Ortiz also stated that a FOP lawyer could not represent Ortiz.

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Ortiz attempted to go downstairs to her car to call another police

officer or superior to help her, but Sergeant Sanchez told her she

could not leave the Internal Affairs office. Javier Ortiz provided

Ortiz with the following resignation memorandum, which Ortiz

signed:

I, Officer Melanie Ortiz PIN 29186 voluntarily resign

with no threats, rewards or promises from my posi-

tion as a Police Officer with the City of Miami Police

Department. This redline memorandum is irrevoca-

ble and my resignation will be effective immediately.

I have spoken to my representative of choice, Lieu-

tenant Javier Ortiz who is the President of the Miami

Fraternal Order of Police. I am resigning for personal

reasons and believe that this is the best option for my-

self and my family.

Ortiz’s resignation was accepted by then-Chief of Police, Rodolfo

Llanes. Four other City police officers subsequently resigned using

“nearly verbatim documents.” Those officers included: (1) Michael

Bode, a former police officer “who actually had accepted [bribes]”;

(2) Article Peoples, who was relieved of duty in 2014 during the

bribery investigation but was never criminally charged; and (3)

Yesid Ortiz and Reynaldo Irias, who both resigned after being sum-

moned by Internal Affairs and were not criminally charged in rela-

tion to the bribery scheme.

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Article 8.1.D of the FOP’s collective bargaining agreement

with the City, which is similar to Florida Statute § 112.532(1)(d), 1

provides the following guidelines for investigations that could lead

to disciplinary action: (1) the officer must be informed of the nature

of the investigation before any interrogation begins; (2) all identifi-

able witnesses shall be interviewed prior to the investigative inter-

view of the accused; and (3) the evidence and complaint must be

provided to the accused officer before any interview of that officer.

After the officer’s interview, Internal Affairs then makes recom-

mendations as to guilt or innocence and appropriate punishment

to the Chief of Police. After the Chief’s decision is made, a police

officer can appeal to the Civil Service Board for a vote on the issue

of guilt.

On December 16, 2020, Ortiz filed a complaint against the

City of Miami, the Order of Police, and several individual defend-

ants. On May 17, 2021, Ortiz filed a second amended complaint

1Section 112.532 sets forth the rights and privileges of all law enforcement

officers. Subsection (1)(d) provides, in relevant part:

The law enforcement officer . . . under investigation must be

informed of the nature of the investigation before any interro-

gation begins . . . . All identifiable witnesses shall be inter-

viewed, whenever possible, prior to the beginning of the in-

vestigative interview of the accused officer. The complaint, all

witness statements, including all other existing subject officer

statements, and all other existing evidence . . . must be pro-

vided to each officer who is the subject of the complaint before

the beginning of any investigative interview of that officer. . . .

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against the City of Miami, Rodolfo Llanes, Javier Ortiz, Fabio

Sanchez, and the FOP (collectively, “Defendants”). Ortiz claimed

that Defendants denied her due process in violation of 42 U.S.C. §

1983 (Count I) and that Defendants conspired to violate her consti-

tutional rights (Count II). On May 28, 2021, Defendants filed a mo-

tion to dismiss the second amended complaint. Defendants argued

dismissal was appropriate as to Count I because: (1) Ortiz’s § 1983

claims related to the FOP and Ortiz failed to plead the requisite

“state action” because the FOP and Ortiz, a labor union and labor

union president, are private actors; (2) Ortiz’s § 1983 claim failed to

plead a requisite “constitutional violation” as Ortiz failed to invoke

any of her rights to either a pre or post-deprivation hearing; (3)

Llanes and Sanchez, as governmental officials, are entitled to qual-

ified immunity; and (4) Ortiz failed to allege that the City had a

custom or policy that constituted deliberate indifference to a rec-

ognized constitutional right. As to Count II, Defendants argued

that the second amended complaint failed to allege a § 1983 con-

spiracy.

On December 2, 2021, the district court granted the Defend-

ants’ motion to dismiss with prejudice. 2 For Count I, as to Llanes

and Sanchez, the district court determined that they were entitled

to qualified immunity because neither had committed any consti-

tutional violation. Specifically, the district court reasoned that the

2 The district court determined that Ortiz’s failure to seek redress in state court

did not bar her § 1983 claim against the FOP and the individual defendants.

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memorandum identified by Ortiz’s complaint was “insufficient to

put Llanes on notice of the coercion [to resign]” and that Sanchez’s

private chat with an unidentified representative did not “amount

to a constitutional violation.” As to the § 1983 claim pertaining to

all Defendants, the district court determined that the complaint

failed to allege a conspiracy between the state and private actors.

The district court noted that “[c]ritically, the operative complaint

does not allege that Sanchez and Javier Ortiz communicated at any

point during the relevant time period, much less that they reached

an understanding.” Declining to “infer that because Sanchez rec-

ommended Javier Ortiz be the representative at the interview, that

the two reached an understanding to deprive Ortiz of her due pro-

cess rights,” the district court concluded that the complaint did not

allege a conspiracy. As to Javier Ortiz and the FOP, the district

court concluded that they were not acting under state color.

The district court also determined that Ortiz’s complaint did

not state a claim for municipal liability under § 1983 because she

did not identify any official policy of coercing employees to resign

and because Llanes could not have been part of an unofficial policy

as he was not the final policymaker. For those reasons, the district

court dismissed Count I. As to Count II, the district court dismissed

the conspiracy claim for the same reasons as it dismissed the con-

spiracy claim under § 1983––insufficient evidence of such a conspir-

acy.

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On January 3, 2022, Ortiz filed a motion for reconsideration.

The district court denied this motion, finding no manifest error of

fact or law in the previous order. Ortiz timely appealed.

II. STANDARD OF REVIEW

We review de novo a district court’s order of dismissal, “ac-

cepting the allegations in the complaint as true and construing

them in the light most favorable to the plaintiff.” Mesa Valderrama

v. United States, 417 F.3d 1189, 1194 (11th Cir. 2005). 3 A complaint

must articulate “enough facts to state a claim to relief that is plau-

sible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007).

III. ANALYSIS

Ortiz argues that the district court erred in dismissing her

claims against the City of Miami, former-Police Chief Rodolfo

Llanes, Internal Affairs Sergeant Fabio Sanchez, the FOP, and the

FOP President Javier Ortiz. We address arguments relating to the

parties in turn.

3 We review a district court’s denial of a motion for reconsideration for abuse

of discretion. Corwin v. Walt Disney Co., 475 F.3d 1239, 1254 (11th Cir. 2007).

Although Ortiz seeks reversal of the order denying reconsideration, she makes

no arguments in her briefing that pertain to the order denying reconsideration

nor the correct standard of review. As such, we consider any argument as to

that order abandoned. Tanner Advert. Grp., L.L.C. v. Fayette County, 451

F.3d 777, 785 (11th Cir. 2006) (stating that issues not clearly designated in the

initial brief are considered abandoned).

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A. The City of Miami

As a municipality, the City cannot be held vicariously liable

under § 1983 for constitutional violations committed by its officers.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 693–94 (1978). “There

are, however, several different ways of establishing municipal lia-

bility under § 1983.” Hoefling v. City of Miami, 811 F.3d 1271, 1279

(11th Cir. 2016). A municipality can be liable for official policies

enacted by its legislative body. McKusick v. City of Melbourne, 96

F.3d 478, 483 (11th Cir. 1996). “Municipal liability may also attach

if final policymakers have acquiesced in a longstanding practice

that constitutes the entity’s standard operating procedure.” Hoe-

fling, 811 F.3d at 1279.

Ortiz’s complaint fails to state a claim for municipal liability.

Nowhere in her complaint does she identify an official policy of

prompting employee resignations in the manner described. There-

fore, in order to hold the City liable, Ortiz must point to a practice

“so permanent and well settled” that it constitutes a custom or us-

age with the force of law. Monell, 436 U.S. at 691. As with the

failure to identify an official policy, such an allegation is lacking in

her complaint. Melanie Ortiz alleged that the City had a policy of

conspiring with the FOP and Javier Ortiz to deprive police officers

of their due process rights by coercing resignations. The problem

with Ortiz’s argument, however, is that the complaint relies on

then-Chief Llanes’s acceptance of her resignation as the City’s con-

nection to the conspiracy. But Llanes did not adopt any policy re-

lated to police resignations by accepting what, under the

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10 Opinion of the Court 22-11659

allegations of the complaint, was a seemingly voluntary resigna-

tion, and the complaint did not allege that he had any knowledge

of the alleged resignation practice.

Ortiz argues that such approval and knowledge can be “rea-

sonably inferred” because he was the “chief of a police department

that had a collective bargaining agreement specifying elaborate

pre[-]deprivation and post[-]deprivation procedures” and because

the form-letter resignation “contained no rational explanation as to

why she would waive all of those pre[-]deprivation and post-depri-

vation procedures.” We disagree. First, there is an explanation as

to why she would waive those procedures, as the resignation letter

states that Ortiz was “resigning for personal reasons and believe[d]

that this is the best option for myself and my family.” Second, the

fact that Llanes’s department had procedures as to disciplinary

hearings in no way implies his approval of coerced resignations. If

anything, those disciplinary procedures would lead Llanes to as-

sume that the resignation was not coerced absent further infor-

mation. See Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520

U.S. 397, 404 (1997) (“[A] plaintiff must show that the municipal

action was taken with the requisite degree of culpability and must

demonstrate a direct causal link between the municipal action and

the deprivation of federal rights”). Because Ortiz’s complaint fails

to mention a policy or custom adopted by the City, the allegations

are insufficient to create municipal liability.

Therefore, the district court did not err in dismissing Ortiz’s

§ 1983 claim against the City of Miami.

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B. Llanes and Sanchez

Next, Ortiz alleges that Llanes and Sanchez violated her due

process rights under § 1983. The district court determined that

they were entitled to qualified immunity because the second

amended complaint failed to allege that Llanes or Sanchez commit-

ted any constitutional violations. While Ortiz urges reversal of the

district court’s order, she makes no arguments relating to qualified

immunity in her initial briefing and makes a short nonsensical ar-

gument on qualified immunity in her reply briefing. As such, we

consider the qualified immunity issue abandoned. See Tanner Ad-

vert., 451 F.3d at 785; Sapuppo v. Allstate Floridian Ins. Co., 739

F.3d 678 (11th Cir. 2014) (explaining that a party fails to adequately

brief a claim when she does not plainly and prominently raise it,

e.g., by devoting a discrete section of his argument to those claims).

And because we find that Ortiz has abandoned any argument as to

qualified immunity, we affirm the dismissal of Ortiz’s due process

claim under § 1983 against Llanes and Sanchez.

C. The FOP and Javier Ortiz

Finally, Ortiz alleges that the FOP and Javier Ortiz violated

her due process rights under § 1983. To state a claim under § 1983,

a plaintiff must plausibly allege (1) a deprivation of a federal right

and (2) that the deprivation was committed under the color of state

law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).

Defendants can only satisfy the second prong if “the party charged

with the deprivation [was] a person who may fairly be said to be a

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state actor.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)

(quoting Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982)).

“[T]o act ‘under color of’ state law for § 1983 purposes does

not require that the defendant be an officer of the State,” as “[p]ri-

vate actors, jointly engaged with state officials, are acting under the

‘color of law’ for purposes of § 1983 actions.” Dennis v. Sparks, 449

U.S. 24, 27–28 (1980). “The plaintiff attempting to prove such a

conspiracy must show that the parties ‘reached an understanding’

to deny the plaintiff his or her rights.” Bendiburg v. Dempsey, 909

F.2d 463, 468 (11th Cir. 1990) (quoting Addickes v. S.H. Kress &

Co., 398 U.S. 144, 152 (1970). Ortiz argues that the FOP and Javier

Ortiz, although private actors, became state actors by acting in con-

cert with the state officials in depriving her of constitutional rights.

The district court, however, determined that the allegations did

not support such a conspiracy between the private and state actors

in this case.

We agree with the district court, as Ortiz’s complaint indeed

fails to allege a conspiracy between the FOP, Javier Ortiz, and the

City. The only fact alleged in the second amended complaint rele-

vant to such a conspiracy is the private conversation between

Sanchez and Ortiz’s original FOP representative, in which Sanchez

recommended Javier Ortiz to be the representative at Ortiz’s next

interview. But we cannot infer from a recommendation on union

representation that the two reached an understanding to deprive

Ortiz of her constitutional due process rights. Without a

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sufficiently alleged understanding between the private actors and

state actors, the FOP and Javier Ortiz cannot be held liable under §

1983.

The district court thus did not err in dismissing the § 1983

claims against the FOP and Javier Ortiz. 4

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s or-

der dismissing Ortiz’s claims and its order denying her motion for

reconsideration.5

AFFIRMED.

4 Count II for

conspiracy against all Defendants was properly dismissed for the

same reasons outlined here. Ortiz failed to allege an actual agreement or un-

derstanding to deprive her of her constitutional rights.

5 The FOP and Javier Ortiz filed a Motions for Sanctions against Melanie Ortiz.

Although Ortiz’s briefing is disorganized, it is not utterly devoid of merit. As

such, we deny the motion.