Malcolm Neely v. Elmore County

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 26, 2025
• Docket: 24-11112
• Status: Unpublished

Opinion

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 24-11112 Non-Argument Calendar ____________________

MALCOLM NEELY, Plaintiff-Appellant, versus ELMORE COUNTY, ELMORE COUNTY COMMISSION, HENRY HINES, individually and in his Official Capacity as a member of the Elmore County Commission, MACK DAUGHERTY, individually and in Official Capacity as a member of the Elmore County Commission, TROY STUBBS, individually and in his Official Capacity as a USCA11 Case: 24-11112 Document: 24-1 Date Filed: 03/26/2025 Page: 2 of 10

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member of the Elmore County Commission, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:22-cv-00177-RAH-CWB ____________________

Before JORDAN, LAGOA, and WILSON, Circuit Judges. PER CURIAM: This appeal involves a granting of summary judgment for Elmore County and Elmore County Commission (Elmore County) and against Malcolm Neely. Neely owns property encom- passed on two sides by two roads—Estes and Milam Roads—which intersect at the property’s northernmost point. Neely claims that his due process rights were violated when Elmore County alleg- edly encroached upon his land to widen Estes and Milam Roads. Elmore County asserts that it did not encroach, as it believes it has a prescriptive right-of-way in that location. Further, Elmore County claims that its actions were taken for a public purpose— widening the intersection improves motorist safety. The instant case against Elmore County ensued, Elmore County moved for USCA11 Case: 24-11112 Document: 24-1 Date Filed: 03/26/2025 Page: 3 of 10

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summary judgment, and the district court granted summary judg- ment to Elmore County on all claims. In stating the district court improperly granted summary judgment, Neely claims two points of error: (1) the Commission has taken his property against his will in interference of his prop- erty rights, violating his substantive due process rights under the Fourteenth Amendment; and (2) there were genuine issues of ma- terial fact. After careful review, we affirm. 1 I. Because we write for the parties and assume their familiarity with the record, we set out only what is necessary to explain our decision. We review grants of summary judgment de novo. Adams v. Poag, 61 F.3d 1537, 1542 (11th Cir. 1995). Summary judgment is proper if there is “no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Ce- lotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quotation omitted); see also Fed. R. Civ. P. 56(a). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion,” and should rely on submissions “it believes demon- strate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. Once the moving party has met its burden, the non- moving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Id. at 324. Both the party “asserting that

1 Appellees’ accompanying motion for attorney’s fees is DENIED. USCA11 Case: 24-11112 Document: 24-1 Date Filed: 03/26/2025 Page: 4 of 10

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a fact cannot be,” and a party asserting that a fact is genuinely dis- puted, must support their assertions by “citing to particular parts of materials in the record,” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to sup- port the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). To avoid summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). A. “No State shall . . . deprive any person of life, liberty or prop- erty, without due process of law.” U.S. Const. amend. XIV. The substantive component of the Due Process Clause recognizes those “rights that a state may not remove, regardless of the process, as well as actions that can not be countenanced, regardless of the ap- propriateness of the process.” McKinney v. Pate, 20 F.3d 1550, 1560 n.15 (11th Cir. 1994) (en banc). “[O]nly the most egregious official conduct can be said to be arbitrary in the constitutional sense.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (internal quo- tations omitted). Thus, the government cannot burden, in a con- stitutionally arbitrary way, an individual’s property rights. See USCA11 Case: 24-11112 Document: 24-1 Date Filed: 03/26/2025 Page: 5 of 10

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Garvie v. City of Fort Walton Beach, 366 F.3d 1186, 1189, 1191 (11th Cir. 2004). Substantive due process is an outer limit on the legitimacy of governmental action, which protects against government action that is arbitrary, conscience-shocking, or oppressive in a constitu- tional sense. Waddell v. Hendry Cnty. Sheriff’s Off., 329 F.3d 1300, 1305 (11th Cir. 2003). Therefore, a successful substantive due pro- cess claim requires showing: (1) the plaintiff had a valid property interest, and (2) the defendant infringed on that interest in a consti- tutionally arbitrary or conscience-shocking manner. See id. To prove a substantive due process violation in a private tak- ings case, a plaintiff must show that the taking had no rational con- nection to a plausible conception of the public interest—a very low hurdle for the government to meet. See Garvie, 366 F.3d at 1189, 1191. The fact that a taking creates incidental benefits for individ- ual private parties “does not condemn that taking as having only a private purpose.” Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 243– 44 (1984). In this case, Neely maintains that Elmore County’s actions violated his substantive due process rights due to an allegedly arbi- trary and capricious taking. Neely has a private property interest, which satisfies our primary inquiry. Turning to Elmore County’s alleged infringement, Elmore County has the power and obligation to maintain county roads, which includes the property at issue here. See Ala. Code § 23-1-80. Elmore County may also take pri- vate property for public roads. See Ala. Code § 11-80-1. Elmore USCA11 Case: 24-11112 Document: 24-1 Date Filed: 03/26/2025 Page: 6 of 10

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County presented evidence below showing that the challenged en- croachment facilitates the public’s safe use of the roads at the inter- section. And Neely has not shown that Elmore County infringed on his property interest in a constitutionally arbitrary or con- science-shocking manner. As such, Neely has not shown that the Elmore County’s alleged taking has no conceivable or rational pub- lic purpose, and certainly not one that rises to the level of arbitrary or conscience-shocking. See Midkiff, 467 U.S. at 241; Garvie, 366 F.3d at 1189. Neely also argues his due process rights were violated by Elmore County encroaching on his land without filing formal con- demnation proceedings. As the district court aptly noted, this the- ory falls under the ambit of a procedural due process claim, because it revolves around the procedures allegedly used by Elmore County. However, Neely has not appealed the dismissal of his pro- cedural due process claim. Neely cannot workaround this over- sight by shoehorning a procedural due process argument before our court in a substantive due process guise. As such, this argu- ment is not properly before us, and we affirm the district court on this issue. B. Neely contends that genuine issues of material fact persist as to the extent of Elmore County’s encroachment on his property. Because the exact amount of the encroachment remains contested, Neely argues the district court erred in granting summary judg- ment. USCA11 Case: 24-11112 Document: 24-1 Date Filed: 03/26/2025 Page: 7 of 10

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Even assuming, arguendo, that Neely could prove encroach- ment, the exact amount is of no consequence. See Matsushita Elec. Indus. Co., 475 U.S. at 586. Elmore County agreed in court to pre- sent their arguments with the assumption there was encroachment for the purposes of summary judgment. The extent of the en- croachment is not material, but admitting the existence of encroach- ment was material and properly dealt with at the summary judg- ment stage. And, regardless, Elmore County’s decision to priori- tize public safety by widening an intersection is not the kind of abuse of government power forbidden by the substantive due pro- cess clause. See Waddell, 329 F.3d at 1305. Because we find that Elmore County’s actions were not arbitrary or conscience-shock- ing, the extent of property at issue is immaterial. II. We affirm the district court’s grant of summary judgment. AFFIRMED. USCA11 Case: 24-11112 Document: 24-1 Date Filed: 03/26/2025 Page: 8 of 10

24-11112 LAGOA, J., Concurring 1

LAGOA, Circuit Judge, Concurring: I join the majority opinion in full. I write separately to em- phasize that today’s decision has no application to claims brought pursuant to the Takings Clause of the Fifth Amendment. As the majority explains, this case involves a dispute about the widening of a public roadway, which allegedly encroached on private property. Malcolm Neely, the landowner, alleges that Elmore County, the Elmore County Commission and its mem- bers, and an Elmore County employee effected this encroachment against his will. The Takings Clause of the Fifth Amendment pro- vides that “private property” shall not “be taken for public use, without just compensation,” U.S. Const. amend. V, and its require- ments apply to the States via the Fourteenth Amendment. E.g., Chicago, B. & Q. Railroad Co. v. Chicago, 166 U.S. 226 (1897). But Neely’s claims were not premised on the Takings Clause. Instead, his amended complaint asserted violations of procedural and sub- stantive due process under the Due Process Clause of the Four- teenth Amendment. The district court dismissed Neely’s first count—a procedural-due-process claim—at the motion-to-dismiss stage and dismissed Neely’s second count—a substantive-due-pro- cess claim—at summary judgment. Neely only appeals the dismis- sal of his substantive-due-process claim. As the majority recognizes, the doctrine of substantive due process provides little relief to Neely. See, e.g., Waddell v. Hendry Cnty. Sheriff’s Off., 329 F.3d 1300, 1305 (11th Cir. 2003) (“[C]onduct by a government actor will rise to the level of a substantive due USCA11 Case: 24-11112 Document: 24-1 Date Filed: 03/26/2025 Page: 9 of 10

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process violation only if the act can be characterized as arbitrary or conscience shocking in a constitutional sense.”); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1577 (11th Cir. 1989); Garvie v. City of Ft. Walton Beach, Fla., 366 F.3d 1186, 1191 (11th Cir. 2004). More generally, the doctrine of substantive due process rests on tenuous footing—to say the least. See McDonald v. City of Chicago, Ill., 561 U.S. 742, 811 (2010) (Thomas, J., concurring) (“The notion that a constitutional provision that guarantees only ‘process’ before a per- son is deprived of life, liberty, or property could define the sub- stance of those rights strains credulity for even the most casual user of words.”); Eknes-Tucker v. Governor of Alabama, No. 22-11707, 2024 WL 3964753, at *1243 (11th Cir. Aug. 28, 2024) (William Pryor, C.J., respecting the denial of rehearing en banc) (“The doctrine of substantive due process does violence to the text of the Constitu- tion, enjoys no historical pedigree, and offers judges little more than shifting and unilluminating standards with which to protect unenumerated rights.”). Had Neely instead brought a claim under the Takings Clause, this would be a closer case. This case involves an alleged encroachment of a public roadway onto private property. And “physical appropriations constitute the ‘clearest sort of taking.’” Cedar Point Nursery v. Hassid, 594 U.S. 139, 148 (2021) (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001)). We assess phys- ical appropriations “using a simple, per se rule: The government must pay for what it takes.” Id.; Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 322 (2002) (“When the gov- ernment physically takes possession of an interest in property for USCA11 Case: 24-11112 Document: 24-1 Date Filed: 03/26/2025 Page: 10 of 10

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some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken con- stitutes an entire parcel or merely a part thereof.”); Palazzolo, 533 U.S. at 617 (“Our cases establish that even a minimal ‘permanent physical occupation of real property’ requires compensation under the [Takings] Clause.” (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427 (1982))). Additionally, there appear to be disputed issues of fact—the exact boundaries of Neely’s prop- erty lines and the roadways, the existence of a prescriptive ease- ment in the defendants’ favor—that would be relevant to such a claim. I cannot speculate as to why Neely failed to assert a claim under the Takings Clause—he may have faced factual or legal im- pediments not revealed by the record before us. But I find it nec- essary to emphasize that today’s decision in no way implicates claims brought pursuant to the Takings Clause. With those com- ments, I join the Court’s opinion.