Diyonne McGraw v. Khanh-Lien Roberts Banko

USCA11 Case: 22-12987 Document: 57-1 Date Filed: 10/26/2023 Page: 1 of 6

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12987

Non-Argument Calendar

____________________

DIYONNE L. MCGRAW,

Plaintiff-Appellant,

versus

KHANH-LIEN ROBERTS BANKO,

SELDON J CHILDERS,

CHILDERS LAW, LLC,

RON DESANTIS,

In his Individual Capacity and Official

Capacity as Governor of Florida,

Defendants-Appellees.

____________________

USCA11 Case: 22-12987 Document: 57-1 Date Filed: 10/26/2023 Page: 2 of 6

2 Opinion of the Court 22-12987

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 1:21-cv-00163-AW-MAF

____________________

Before NEWSOM, GRANT, and BRASHER, Circuit Judges.

PER CURIAM:

We grant the petition for rehearing in part, withdraw our

previous opinion, and replace it with the following.

Diyonne McGraw won an election for a school board seat

for District Two in Alachua County, Florida. But McGraw had a

problem: The local media discovered that she did not actually live

in that district, even though a county official had told her other-

wise. So McGraw’s opponent in the primary election, Khanh-Lien

Roberts Banko, hired an attorney, Seldon Childers, to file an emer-

gency declaratory judgment action against McGraw in state court.

Banko alleged that McGraw’s seat was technically vacant under

Florida law, which requires that public officials live in the districts

they represent. The state court denied Banko’s emergency motion

for relief but suggested that Banko was likely to succeed on the

merits. Childers forwarded that order to Governor DeSantis’s of-

fice, and Banko also wrote to the Governor.

In response, Governor DeSantis issued Executive Order 21-

147. The Executive Order explained that, because he concluded

that McGraw failed to maintain residency in District Two, her seat

was vacant as a matter of law. McGraw filed a petition for a writ of

USCA11 Case: 22-12987 Document: 57-1 Date Filed: 10/26/2023 Page: 3 of 6

22-12987 Opinion of the Court 3

quo warranto against Governor DeSantis in state court, which the

court denied. McGraw appealed that order.

McGraw then filed this action. In the operative complaint,

McGraw alleges that Governor DeSantis, Banko, Childers, and

Childers’s law firm conspired to infringe her “fundamental right”

under the Due Process Clause of the Fourteenth Amendment to

“vote and have her vote counted.” She sought compensatory dam-

ages and injunctive relief. The defendants separately moved to dis-

miss the second amended complaint.

The district court dismissed each of McGraw’s claims—

some on justiciability grounds, the rest on the merits. Banko ap-

pealed.

After appealing, McGraw ran for election in a newly drawn

District Two and won, which mooted the state court appeal of her

petition for a writ of quo warranto. Likewise, McGraw concedes

that her requests for injunctive relief in this case are moot because

she currently serves on Alachua County’s school board. So we con-

sider only her claims for damages in this appeal.

We review de novo a district court’s order granting a Rule

12(b)(6) motion to dismiss, accepting the allegations in the com-

plaint as true and construing them in the light most favorable to

the plaintiff. Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288

(11th Cir. 2010). To survive a motion to dismiss, a complaint must

“state a claim to relief that is plausible on its face,” meaning it must

contain “factual content that allows the court to draw the reasona-

ble inference that the defendant is liable for the misconduct

USCA11 Case: 22-12987 Document: 57-1 Date Filed: 10/26/2023 Page: 4 of 6

4 Opinion of the Court 22-12987

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

McGraw contends that Governor DeSantis and by extension

the other defendants 1 violated her substantive due process right “to

vote and have her vote counted.” By removing her from office, her

theory goes, Governor DeSantis “disenfranchised her and her vot-

ers.” As for McGraw’s only remaining claim for damages, the Gov-

ernor argues that he is protected by qualified immunity because his

actions did not violate clearly established law. We agree.

The Due Process Clause of the Fourteenth Amendment

“guarantee[s] some rights that are not mentioned in the Constitu-

tion, but any such right must be ‘deeply rooted in this Nation’s his-

tory and tradition’ and ‘implicit in the concept of ordered liberty.’”

Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022)

(quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). Courts

rarely recognize new substantive due process rights. Collins v. City

of Harker Heights, 503 U.S. 115, 125 (1992) (“[T]he Court has always

1 The other defendants argue that they are not state actors for the purposes of

this constitutional claim. We agree. It is “[o]nly in rare circumstances” that a

private party can be viewed as a state actor for purposes of Section 1983. Har-

vey v. Harvey, 949 F. 2d 1127, 1130 (11th Cir. 1992). A private person may be

considered a state actor if they willfully participated in a joint act with the state

or its agents. Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). We cannot say that

Banko, Childers, and Childers’s law firm engaged in that kind of joint act when

they petitioned the Governor in light of the state court’s ruling. See, e.g., Cobb

v. Georgia Power Co., 757 F.2d 1248, 1251 (11th Cir. 1985)(“One who has ob-

tained a state court order or judgment is not engaged in state action merely

because it used the state court legal process.”).

USCA11 Case: 22-12987 Document: 57-1 Date Filed: 10/26/2023 Page: 5 of 6

22-12987 Opinion of the Court 5

been reluctant to expand the concept of substantive due process

because guideposts for responsible decisionmaking in this unchar-

tered area are scarce and open-ended.”). A plaintiff may bring an

action under Section 1983 for violations of substantive due process

rights, see Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013),

but a plaintiff cannot prevail unless the Due Process Clause pro-

tects the right invoked.

For its part, qualified immunity shields state officials from

liability for money damages in their individual capacity unless a

plaintiff pleads facts showing “(1) that the official violated a statu-

tory or constitutional right, and (2) that the right was ‘clearly estab-

lished’ at the time of the challenged conduct.” Ashcroft v. al–Kidd,

563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). “‘Clearly established’ means that, at the time of the of-

ficer’s conduct, the law was sufficiently clear that every reasonable

official would understand that what he is doing is unlawful.” Dis-

trict of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 589 (2018)

(quoting Ashcroft v. al–Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179

L.Ed.2d 1149 (2011)) (internal quotation marks omitted).

McGraw cannot prove the existence of a clearly established

substantive due process right on which she may base her claim.

McGraw relies on a single, inapposite decision from the former

Fifth Circuit. See Duncan v. Poythress, 657 F.2d 691, 703-04 (5th Cir.

Unit B Sept. 1981). There, the court held that public officials disen-

franchise the electorate when they fill by appointment an office

that state law mandates filling by election. This case has little in

USCA11 Case: 22-12987 Document: 57-1 Date Filed: 10/26/2023 Page: 6 of 6

6 Opinion of the Court 22-12987

common with Duncan. There, state officials deprived voters of an

election to fill a public office where state law required one. Id. Here,

voters voted and elected McGraw. But Governor DeSantis deter-

mined the seat to which McGraw was “elected” was vacant under

state law because he determined that she did not reside in the dis-

trict. Put differently, voters exercised their right to vote. But they

elected someone who another state official determined was ineligi-

ble to hold the position under state law. We cannot say that the

Governor’s actions violated a clearly established constitutional

right such that he may be held liable for damages.

For these reasons, the district court is AFFIRMED.

McGraw’s motions for sanctions are DENIED.