Topping v. Cohen et al
Filing
69
OPINION AND ORDER denying as moot 33 motion to dismiss; denying as moot 34 motion to dismiss; denying as moot 40 motion to amend/correct; denying 49 Motion for Default Judgment for failure to obtain default; finding as moot 51 Report a nd Recommendations in light of second and third motions to amend; denying 54 second motion to amend/correct; denying 64 Motion for Default Judgment for failure to obtain default; denying 67 third motion to amend/correct. The 55 Second Amended Complaint is stricken and plaintiff shall file a Third Amended Complaint within 21 days of this Opinion and Order. Signed by Judge John E. Steele on 9/18/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DALE J. TOPPING,
Plaintiff,
v.
Case No: 2:14-cv-146-FtM-29DNF
KYLE COHEN, CHARLOTTE MASON,
SCOTT
OWCZAREK,
DIANE
SPADONI,
NATASHA
VARNOVITSKY, JOHN DOES, and
other
presently
unknown
parties
employed
by
or
affiliated with the U.S.
Department
of
Education,
JACQUENETTE THOMPSON, TERESA
GULICK, and NICOLE ROVIG,
Defendants.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #51), filed
July 24, 2014, recommending that that plaintiff's request for leave
to file an amended complaint to name Nicole Rovig and Teresa Gulick
be denied.
Motion
to
deficiencies
Rather than filing objections, plaintiff filed a
Amend
noted
Complaint-2ND
in
that
(Doc.
report,”
Second Amended Complaint (Doc. #55).
#54)
“to
correct
contemporaneously
the
with
a
Before an Order could issue
on this second motion to amend, plaintiff filed a third Motion to
Amend Complaint Items 98, 99, and 103 to Specifically Include
Defendant Varnovitsky in Potential Bivens Claim (Doc. #67).
In
light of the later motions to amend and the unauthorized Second
Amended Complaint, the Report and Recommendation and first motion
to amend will be deemed moot.
The Court will review the second
and third motions to determine whether plaintiff will be permitted
to proceed on the Second Amended Complaint.
1. Shotgun Pleading
The Second Amended Complaint is a shotgun pleading and will
be
dismissed
on
this
basis.
“The
typical
shotgun
complaint
contains several counts, each one incorporating by reference the
allegations of its predecessors, leading to a situation where most
of the counts (i.e., all but the first) contain irrelevant factual
allegations and legal conclusions.”
Strategic Income Fund, L.L.C.
v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir.
2002).
The Eleventh Circuit has consistently frowned upon shotgun
pleadings such as the one presented herein, and shotgun pleadings
“exact an intolerable toll on the trial court’s docket.”
v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997).
Cramer
See also Davis
v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 n.54 (11th
Cir. 2008)(collecting cases).
Accordingly, the Eleventh Circuit
has established that when faced with a shotgun pleading, a district
court should require plaintiff to file an amended pleading rather
than allow such a case to proceed to trial.
Byrne v. Nezhat, 261
F.3d 1075, 1130 (11th Cir. 2001).
The Court notes that the Second Amended Complaint also fails
to set forth a short, plain statement as to the allegations against
each defendant.
See Fed. R. Civ. P. 8.
- 2 -
2. Count I
Count One is presented as a “violation of the 5th Amendment
to the United States Constitution by employees of the United States
government; seizures lacking due process of law – Bivens” against
defendants
Cohen,
an
AUSA
who
represented
the
United
States
Department of Education in Case No. 2:09-cv-396-FTM-29DNF, and
Mason, Spadoni, and Thompson, who are or were, employees of the
Department of Education.
A plaintiff may bring a Bivens 1 cause of action for damages
for a violation of the Fifth Amendment, if no alternative forms of
judicial relief are available.
245 (1979).
“while
Davis v. Passman, 442 U.S. 228,
In this case, plaintiff alleges that defendants,
acting
under
color
of
law
and
conspiring
to
deprive
plaintiff of his civil rights,” denied him lawful process in a
2010
administrative
garnishment
hearing
by
obtaining
secret
witnesses, conspiring to commit bribery or coercion, concealing a
secret witness to conceal the bribery and coercion, and tampering
with a witness.
(Doc. #55, ¶¶ 50, 63, 98-103.)
Plaintiff makes
several broad allegations of witness tampering and concealment,
but Count I requires further factual support to indicate the role
of each named defendant and how each defendant violated plaintiff’s
5th Amendment rights in order to state a claim.
1
Bivens v. Six Unknown Named
Narcotics, 403 U.S. 388 (1971).
- 3 -
Agents
of
The Court need
Fed.
Bureau
of
not otherwise address issues of immunity raised by defendant Kyle
Cohen at this time.
See, e.g., Doc. #34.
3. Count II
Count Two is presented as a claim under 42 U.S.C. § 1983.
Section 1983 imposes liability on any person who, under color of
state
law,
deprives
a
person
“of
any
rights,
privileges,
immunities secured by the Constitution and laws.”
1983.
or
42 U.S.C. §
To establish a claim under § 1983, plaintiff must allege
and prove that (1) defendant deprived him of a right secured under
the Constitution or federal law, and (2) such deprivation occurred
under color of state law.
Arrington v. Cobb County, 139 F.3d 865,
872 (11th Cir. 1998); United States Steel, LLC v. Tieco, Inc., 261
F.3d 1275, 1288 (11th Cir. 2001).
Plaintiff must also allege and
prove an affirmative causal connection between defendants’ conduct
and the constitutional deprivation.
Marsh v. Butler County, Ala.,
268 F.3d 1014, 1059 (11th Cir. 2001)(en banc); Swint v. City of
Wadley, Ala., 51 F.3d 988, 999 (11th Cir. 1995).
Plaintiff enumerates the Florida state statutes that were
violated, but the Second Amended Complaint contains no allegations
of any actions taken by Cohen, Gulick, Mason, Rovig, Owczarek,
Thompson, or Varnovitsky under the color of state law.
Only two
of the named defendants are or were state employees or employees
of state universities.
Plaintiff also fails to allege a violation
of a specific federal law or the United States Constitution, except
- 4 -
to generically assert a violation of due process.
(Doc. #55, ¶¶
106, 113.)
4. Count III
Count III is presented as a claim under the federal civil
Racketeer Influenced and Corrupt Organizations Act (RICO).
Under
Section 1962(c) of the RICO Act, it is unlawful “for any person
employed by or associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of
such
enterprise’s
activity.”
affairs
through
18 U.S.C. § 1962(c).
a
pattern
of
racketeering
To establish a federal civil
RICO violation under § 1962(c), the plaintiff must prove (1)
conduct
(2)
of
an
enterprise
(3)
through
a
pattern
(4)
of
racketeering activity and (5) injury to “business or property” (6)
that was “by reason of” the substantive RICO violation.
Williams
v. Mohawk Indus., 465 F.3d 1277, 1282 (11th Cir. 2006)(citing 18
U.S.C. §§ 1962(c), 1964(c)).
Section 1962(d) of the RICO Act
makes it unlawful to conspire to violate any of the provisions
under the other subsections, including subsection (c).
A civil
RICO conspiracy claim requires the commission of an overt act in
furtherance of the conspiracy.
Beck v. Prupis, 162 F.3d 1090,
1098 (11th Cir. 1998)(citing Bivens Gardens Office Bldg., Inc. v.
Barnett Bank of Fla., Inc., 906 F.2d 1546, 1550 n.7 (11th Cir.
1990)).
- 5 -
As a preliminary matter, plaintiff alleges a substantive
claim and a conspiracy claim in one count by asserting that the
principal
offenders
conspired
with
are
“latecomer
Mason,
Spadoni,
conscripted
Owczarek, Rovig, and Varnovitsky.
and
actors”
Thompson,
Cohen,
(Doc. #55, ¶ 117.)
who
Gulick,
Plaintiff
vaguely alludes to “an organized criminal enterprise” but does not
identify the pattern of racketeering activity, or specify the role
of each defendant, or what predicate acts may be attributed to
each defendant. 2
5. Third Amended Complaint
The Court will deny the second and third motions to amend in
light of the Court’s determination that the proposed Second Amended
Complaint is a shotgun pleading, and otherwise fails to state a
claim on its face.
Therefore, the Second Amended Complaint, filed
without leave of court, will be stricken.
15(a)(2).
See Fed. R. Civ. P.
The Court will however permit plaintiff to file a third
and final amended complaint, without requiring a further motion to
amend.
No further motions to amend will be entertained, and will
be stricken.
Plaintiff must state what rights under the Constitution,
laws, or treaties of the United States have been violated.
It is
improper for plaintiff to merely list constitutional rights or
2
The Court notes that some of the relevant factual
allegations are contained in earlier paragraphs, but the
incorporation of all previous paragraphs renders Count III
untenable as currently pled.
- 6 -
federal rights and/or statutes.
Plaintiff must also provide
factual support for the claimed violations.
So, in the body of
the third amended complaint, plaintiff should clearly describe how
each named defendant is involved in the alleged claim.
More than
conclusory and vague allegations are required to state a cause of
action.
Plaintiff must also state which defendants are being sued
for each particular count, and within each particular count of the
Third Amended Complaint.
Plaintiff is reminded that his pro se
status does not free him from the requirements of the Federal Rules
of Civil Procedure or the Local Rules of the Middle District of
Florida, which Rules plaintiff is directed to consult before filing
the Third Amended Complaint.
See, e.g., M.D. Fla. R. 3.01(c)(no
replies or further memoranda directed to a motion or response are
permitted without leave of court).
Accordingly, it is now
ORDERED:
1.
The
underlying
Report
Motion
to
and
Recommendation
Amend
Complaint
(Doc.
to
#51)
Include
and
the
Additional
Individuals By Name (Doc. #40) are deemed moot in light of the
second and third motions to amend.
2.
Plaintiff’s Motion to Amend Complaint – 2ND (Doc. #54)
and Motion to Amend Complaint Items 98, 99, and 103 to Specifically
Include Defendant Varnovitsky in Potential Bivens Claim (Doc. #67)
are DENIED.
- 7 -
3.
The Second Amended Complaint (Doc. #55) is stricken and
plaintiff shall file a Third Amended Complaint within twenty-one
(21) days of this Opinion and Order pursuant to the instructions
above.
4.
Defendant Scott Owczarek’s Motion for Dismissal (Doc.
#33) and Defendant Assistant United States Attorney Kyle Cohen’s
Motion to Dismiss (Doc. #34) are DENIED as moot.
5.
Plaintiff's
Motion
for
Default
Judgment
Against
Defendants Mason, Spadoni, and Thompson (Doc. #49) and Motion for
Default Judgement [sic] Against Defendant Varnovitsky (Doc. #64)
are DENIED as premature because plaintiff failed to first obtain
a Clerk’s default pursuant to Fed. R. Civ. P. 55(a).
DONE and ORDERED at Fort Myers, Florida, this
of September, 2014.
Copies:
Hon. Douglas N. Frazier
United States Magistrate Judge
Counsel of Record
Unrepresented parties
- 8 -
18th
day
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?