Cosby v. Lee County et al
Filing
36
ORDER granting 27 the Defendants, Lee County, Jack Barden, Paul Valenti and Glen Salyer's Dispositive Motion to Dismiss Amended Complaint. The case is DISMISSED. The Clerk of the Court is directed to enter judgment accordingly, terminate any pending motions and close the file. Signed by Judge Sheri Polster Chappell on 9/24/2014. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GREGORY V. COSBY, SR.,
Plaintiff,
v.
Case No: 2:14-cv-255-FtM-38DNF
LEE COUNTY, JACK BARDEN, PAUL
VALENTI and GLEN SALYER,
Defendants.
/
ORDER1
This matter comes before the Court on the Defendants, Lee County, Jack Barden,
Paul Valenti and Glen Salyer's Dispositive Motion to Dismiss Amended Complaint (Doc. #27)
filed on July 22, 2014. The Plaintiff, Gregory V. Cosby, Sr. filed his Response in Opposition
(Doc. #32) on August 11, 2014. The Motion is now fully briefed and ripe for the Court’s review.
FACTS
The Plaintiff, Cosby was employed as the maintenance supervisor by Provincetown
Condominium Association. On August 4, 2008, Cosby filed charges with the Lee County
Office of Equal Opportunity (LCOEO) alleging that Provincetown discriminated against him
by paying his predecessor, Keith Hicks, a higher ending wage than his beginning wage. (Doc.
#26, ¶ 14). Cosby’s claim was brought pursuant to Lee County Ordinance 00-18 and was
1
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user to some other site does not affect the opinion of the court.
designated as claim A8130E. (Doc. #26, ¶15). The LCEOE is tasked with administering the
Ordinance.
In August of 2011, Cosby met with the Defendant Barden to discuss his claim A8130E.
(Doc. #26, ¶ 19). On December 13, 2011, Cosby was sent a Final Investigative Report (FIR)
and Notice of Dismissal informing him that A8130E had been dismissed because the
investigation found no reasonable cause to pursue A8130E. (Doc. #26, ¶ 20). On December
13, 2011, the Defendant Valenti sent Cosby a letter concurring with the Notice and FIR
denying A8130E. (Doc. #26, ¶ 23). On December 20, 2011, Cosby delivered a letter to
Winton, Barden and Karen Hawes2 requesting a staff review of the no reasonable cause
determination reached by Barden’s investigation of A8130E. (Doc. #26, ¶ 28). The next day
on December 21, 2011, Cosby delivered another letter requesting an amendment of the staff
review of his claim. (Doc. #26, ¶29).
On December 22, 2011, Winton sent Cosby a letter informing him that a county
attorney would perform a review of Barden’s investigation. (Doc. #26, ¶ 31). On March 24,
2012, Winton sent Cosby a letter informing him the LCOEO had requested an independent
review of his case file. (Doc. #26, ¶34). On April 20, 2012, Cosby received a letter from
Barden informing him that the EEOC upheld the LCOEO’s no reasonable cause
determination. (Doc. #26, ¶¶ 37-38). Thereafter, the LCOEO took no further action on
A8130E.
On June 5, 2012, Cosby sent a letter to Salyer and Stephane Figueroa, Human
Resources Coordinator for Lee County, regarding his claims against Barden’s investigation
of A8130E. (Doc. #26, ¶ 65). On June 11, 2012, Salyer responded to Cosby’s letter of June
5, 2012, stating that he supported Barden’s handling of his claim. (Doc. #26, ¶ 66). On
2
Winton, and Karen Hawes are non-party employees with the Lee County Government.
2
September 25, 2012, the Lee County Board of Commissioners passed Lee County Ordinance
12-23 which repealed Lee County Ordinance 00-18. (Doc. #26, ¶ 69).
The Plaintiff subsequently brought the instant lawsuit against the Defendants, Lee
County, Florida, Jack Barden, individually and in his official capacity as the Lee County Office
of Equal Opportunity analyst, Paul Valenti, individually, and Glen Salyer, individually in the
Circuit Court in the Twentieth Judicial Circuit in and for Lee County Florida. The Defendants
removed the case to this Court.
Count I of the Amended Complaint pleads a procedural due process claim against
Barden in his individual capacity. Count II alleges Barden violated Cosby’s due process rights
in his official capacity. Count III also alleges that Barden violated Cosby’s due process rights
and violated his equal protection rights under the law. Count IV alleges an equal protection
claim against Barden in his official capacity as an employee of the LCOEO. Count V alleges
a due process violation against Valenti and Salyer in their individual capacities. Count VI is
an equal protection claim against Valenti and Salyer. And Count VII is a claim against Barden,
Valenti, and Salyer for conspiracy to deprive Cosby of his Constitutional rights.
STANDARD OF REVIEW
In deciding a motion to dismiss, the Court must accept all factual allegations in a
complaint as true and take them in the light most favorable to the plaintiffs. Christopher v
Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002). However, dismissal
for failure to state a claim upon which relief may be granted does not require appearance,
beyond a doubt. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561- 563, S. Ct. 127 S. Ct.
1955, 167 L. Ed 2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct.
99, 2 L. Ed. 2d 80 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of
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his “entitlement” to relief requires more than labels, conclusions, and a formulaic recitation of
the cause of actions elements. Bell Atlantic, 550 U.S. 544, 561- 563.
To satisfy the pleading requirements of Fed. R. Civ. P. 8, a complaint must simply give
the defendants fair notice of what the plaintiff’s claim is and the grounds upon which it rests.
Id. at 555; Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 152 L. Ed. 2d 1
(2002). Although the pleading standard announced in Fed R. Civ. P. 8 does not require
“detailed factual allegations,” it does demand more than an unadorned, “the-defendantunlawfully-harmed-me accusation.” Sinaltrainal v. Coca-Cola Co., 578 F. 3d 1252, 1268 (11th
Cir. 2009) (citing Ascroft v. Iqbal, ----- U.S.----, 129 S. Ct. 1937, 1949, 173 L. Ed 2d 868
(2009). Furthermore, unwarranted deductions of fact in a complaint are not admitted as true
for the purpose of testing the sufficiency of the allegations. Sinaltrainal, 578 F. 3d at 1268
(citing Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005)).
The facts as pled must state a claim for relief that is plausible on its face. Sinaltrainal, 578 F.
3d at 1268 (citing Iqbal, 129 S. Ct. at 1950). Dismissal is warranted under Fed. R. Civ. P.
12(b)(6) if, assuming the truth of the factual allegations of plaintiff’s complaint, there is a
dispositive legal issue which precludes relief. Simplexgrinnell, L.P. v. Ghiran, 2007 WL
2480352 (M.D. Fla. August 29, 2007) (citing Neitzke v. Williams, 490 U.S. 319, 326, 109 S.
Ct. 1827, 104 L. Ed. 2d 338 (1989); Brown v. Crawford County, Georgia, 960 F.2d 1002,
1009-1010 (11th Cir. 1992).
DISCUSSION
The Defendants argue that Cosby failed to allege that LCOEO had a custom policy or
practice to discriminate.
The Defendants further argue that Barden, Valenti, and
Salyer are entitled to absolute immunity or in the alternative entitled to qualified immunity.
Finally the Defendants argue that the intra-corporate conspiracy doctrine protects them from
4
any conspiracy claims. Cosby states that he was deprived of his due process rights under
the Fourteenth Amendment because he was not allowed a hearing before the LCOEO
dismissed A8130E on a no reasonable cause determination.
(1) Whether Cosby’s Amended Complaint is a Shotgun Pleading
Initially, the Court notes that Cosby’s Amended Complaint is a shotgun pleading. A
shotgun pleading “incorporate[s] every antecedent allegation by reference into each
subsequent claim for relief.” Frantz v. Walled, 513 F. App’x 815, 820 (11th Cir. 2013) (quoting
Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006)). In a shotgun
complaint, “it is virtually impossible to know which allegations of fact are intended to support
which claim(s) for relief.” Anderson v. Dist. Bd. of Trustee of Cent. Fl. Comm. Coll., 77 F.3d
364, 366 (11th Cir. 1996). Defendants faced with such pleadings cannot and will not be
expected to frame a responsive pleading. Id. “[U]nless cases are pled clearly and precisely,
issues are not joined, discovery is not controlled, the trial court’s docket becomes
unmanageable, the litigants suffer, and society loses confidence in the court’s ability to
administer justice.” Id. For this reason, shotgun complaints should be dismissed, allowing
plaintiffs to re-plead their claims. See Magluta v. Samples, 256 F.3d 1282, 1284-85 (11th Cir.
2001).
Cosby’s Amended Complaint contains seventy-one (71) factual allegations which
Cosby incorporates into each of the seven Counts in the Amended Complaint. In addition to
incorporating each factual allegation into each Count, Cosby incorporates paragraphs 73, 74,
75, 76, and 77 from Count I into Counts II and III, and paragraphs 73, 74, 75, 76, 77, 84, 85,
89, 90, 96, and 97 from various Counts into the remaining successive Counts. The Amended
Complaint’s failure to link factual allegations to specific counts makes it a quintessential
shotgun pleading. Frantz, 513 F. App’x at 821. It is virtually impossible for the Defendants,
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Barden, Valenti, and Salyer to know which allegations of fact are intended to support which
claims for relief. As such, Cosby’s Amended Complaint does not comply with Rule 8(a),” and
must be dismissed as such. Id.
Typically the Court would dismiss the Complaint at this point for failure to state a claim
to which the Defendants could respond, however, because the Defendants also addressed
the merits of the Complaint the Court will review the merits as well.
(2) Whether the Defendants have Absolute or Qualified Immunity
Barden, Valenti, and Salyer submit that they have absolute immunity for Cosby’s
complaint because they were acting within their capacities as Lee County employees and as
local officials for the enforcement of Lee County Ordinance 00-18. They argue that their
actions should be considered as a quasi-judicial procedure with regard to Cosby’s claim.
The Defendants argue that administrative agency personnel are absolutely immune
with regard to their actions while conducting quasi-judicial functions. Under Florida law an
EEOC investigation is a quasi-judicial proceeding. Suarez v. School Board of Hillsboro
County, Florida, 2014 WL 1946536, *6 (M.D. Fla. May 14, 2014) (citing Gandy v. Trans World
Computer Tech Group, 787 So. 2d 116, 119 (FL 2d DCA 2001)).
Absolute immunity has been extended to agency officials performing certain functions
including agency officials conducting EEOC investigations. Foster v. Select Medical
Corporation, Inc., 2013 WL 764780, *7 (M.D. Fla. February 28, 2013) (holding that absolute
immunity applies in many professional licensing, and administrative proceedings, such as
worker’s compensation, unemployment compensation, labor grievances, and EEOC
investigations). In this instance, the LCOEO is responsible for investigating EEOC and
discrimination claims in Lee County.
Barden, Valenti, and Sayler were involved in the
investigation of Cosby’s discrimination claim against his employer Provincetown
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Condominium Association. (Doc. #26, ¶¶ 18, 19, 20). Thus, the Court must determine if
absolute quasi-judicial immunity applies in this case.
In determining whether absolute quasi-judicial immunity is appropriate, courts have
examined the three factors, derived from Butz v. Economou, 438 U.S. 478, 508, 98 S. Ct.
2894, 57 L. Ed. 2d 895 (1978). Specifically, the courts have examined:
(1) Are the official’s functions similar to those involved in the judicial process?;
(2) Are the officials actions likely to result in damages lawsuits by disappointed
participants?; and
(3) Do sufficient safeguards exist to protect against unconstitutional conduct?
Rindley v. Gallagher, 890 F. Supp. 1540, 1554 (S.D. Fla. 1995).
The Court will address the second and third factors first and then proceed to the first
factor in its analysis. In this instance, factor number two (2) clearly favors a finding of absolute
immunity. It is not difficult to imagine that Cosby would sue Barden, Valenti, and Saylor—as
this case demonstrates—but that Cosby would also pursue a discrimination claim and
damages lawsuit against his former employer Provincetown Condominium Association.
The Court also finds that factor number three (3) has been met because there are
sufficient safeguards in place to protect Cosby’s constitutional rights. County Ordinance 0018 provided for an appeals process in the event of a no reasonable cause denial by allowing
the Plaintiff to file a request for a staff review of the determination. (Doc. #27-1, ¶ L(2)). The
process even allows for an outside party like the EEOC to review the no reasonable cause
determination and reverse the LCOEO’s determination if necessary. (Doc. #26, ¶¶ 34-38).
Further should a favorable reasonable cause determination be found, the Ordinance provides
for an extensive hearing process. (Doc. #27-1, § IV).
Additionally, the Plaintiff could pursue
his claim in the state or federal court systems.
Thus the Ordinance had procedural
safeguards in place to protect the Plaintiff’s constitutional rights.
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Regarding the first factor, Barden’s actions were analogous to the functions of a
prosecutor. The prosecutor’s role as advocate necessarily entails the development and
evaluation of the case prior to the formal initiation of a prosecution. Rindley, 890 F. Supp. at
1556. Just like a prosecutor in a criminal case, Barden investigated Cosby’s claim of wage
discrimination, reviewed the relevant evidence and determined that there was no reasonable
cause to file the claim. Absolute immunity has been extended to agency officials performing
certain functions analogous to that of a prosecutor. Id. Thus, Barden is entitled to absolute
immunity in his official role as the investigator of Cosby’s claim A8130E.
Similarly, the Defendants Sayler and Valenti in reviewing the findings submitted by
Barden acted in a quasi-judicial manner as prosecutors and/or judicial officials by reviewing
Barden’s no reasonable cause determination. Therefore, since the Defendants, Barden,
Valenti, and Salyer were conducting an EEOC investigation in a quasi-judicial proceeding
they should be afforded absolute immunity from the allegations made in Cosby’s Amended
Complaint. Foster v. Select Medical Corp., Inc., 2013 WL 764780, *7 (M.D. Fla. February 28,
2013) (holding that absolute immunity applies in EEOC investigations).
(3)Whether Cosby was Denied Due Process
Cosby claims he was denied due process by the Defendants because his claim was
terminated without notice or a formal hearing. The Defendants argue Cosby does not have
a property right in the Lee County Ordinance and that he failed to pursue available remedies
after his claim was determined to be without a reasonable basis.
The Due Process Clause of the Fourteenth Amendment protects both substantive and
procedural due process. Substantive due process protects “fundamental” rights that are
“implicit in the concept of ordered liberty” and created by the United States Constitution.
Greenbriar Vill., L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262 (11th Cir. 2003) (citing
8
McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994)). In his Amended Complaint Cosby
only alleges the deprivation of his procedural due process rights.
A claim for deprivation of procedural due process must allege three elements: “(1) a
deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3)
constitutionally-inadequate process.” J.R. v. Hansen, 736 F.3d 959, 965 (11th Cir. 2013)
(citing Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003)); Miccosukee Tribe of
Indians of Florida v. U.S., 716 F.3d 535, 559 (11th Cir. 2013). “The constitutional violation
actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless
and until the State fails to provide due process.” Flagship Lake County Development Number
5, LLC v. City of Mascotte, Florida, 2013 WL 1774944, *2 (M.D. Fla. April 25, 2013). It is
given that the actions by the Defendants in this case created a state action for the purposes
of reviewing if Cosby was denied due process. Thus, the Court must look to see if Cosby
had a property interest in his claim or if Lee County provided a constitutionally inadequate
process.
(a) Whether Cosby had a Property Interest
Cosby argues that he has a property interest in the LCOEO pursuing his claim or at
least the right to a hearing or notice before his claim was denied. The Defendant Lee County
argues that there is no property interest in the enforcement of a county ordinance or law and
therefore, Cosby had no property interest under the Ordinance.
Property interests are “created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law-rules or
understandings that secure certain benefits and that support claims of entitlement to those
benefits.” Zisser v. Florida Bar, 747 F.Supp.2d 1303, 1317 (M.D. Fla. 2010) (citing Bd. of
Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). “To have
a property interest in a benefit, a person clearly must have more than an abstract need or
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desire for it. Zisser, 747 F. Supp.2d at 1317. He must have more than a unilateral expectation
of it. Id. He must, instead, have a legitimate claim of entitlement to it.” Id. “[A] legitimate claim
of entitlement is created only when the statutes or regulations in question establish a
framework of factual conditions delimiting entitlements which are capable of being explored
in a due process hearing.” Id. (citing Eidson v. Pierce, 745 F.2d 453, 459–60 (7th Cir.1984)).
Put another way, a person has a legitimate claim of entitlement to keep that which presently
securely belongs to that person. Zisser, 747 F. Supp.2d at 1317; See Reed v. Village of
Shorewood, 704 F.2d 943, 948 (7th Cir.1983) (“[P]roperty is what is securely and durably
yours under state ... law as distinct from what you hold subject to so many conditions as to
make your interest meager, transitory, or uncertain.”). Accordingly, the salient issue is
whether or not Ordinance 00-18 provided Cosby, and any other putative applicants, a secure
and durable interest and entitlement to a hearing during the investigative process.
Cosby argues that the issue is not that LCOEO did not file suit on his behalf, but that
Barden terminated A8130E without notice or giving him the chance to be heard. Preliminarily,
the Court notes that Cosby did have the chance to be heard prior to Barden issuing his
decision. Cosby was allowed to meet with Barden in August 2011 to discuss his claim prior
to the claim being dismissed in December 2011. (Doc. #26, ¶ 19).
A
review
of
Ordinance 00-18 shows that it did not create a legitimate claim of entitlement for an individual
whose claim was denied based upon a no reasonable cause finding. In fact, the language in
Ordinance 00-18 specifically states that “[i]f the LCOEO determines that no reasonable cause
exists to believe that a discriminatory employment practice has occurred, it shall promptly
dismiss the Charge. LCOEO shall make public disclosure of each dismissal under this
section.” (Doc. #21-1, § III, ¶ L(1)). Thus, Cosby was put on notice that Ordinance 00-18 did
not confer a benefit to a hearing upon Cosby or any other claimants who might file a claim
with Lee County prior to the LCOEO issuing a no reasonable cause determination. Merely
10
because Cosby states he deserved a hearing or desired a hearing did not create a property
interest under the Ordinance. Zisser, 747 F. Supp.2d at 1317. As such, the Ordinance did
not create a property interest in a hearing for a denied claim. See Kelly v Gill, 544 So. 2d
1162, 1164-65 (Fla. 5th DCA 1989) (Courts in Florida have found that a state statute that
requires minimal procedural steps before termination will not in and of itself create a property
interest . . .).
(b) Whether the Process was Constitutionally Inadequate
Cosby argues that he did not receive the opportunity to be heard because he was not
allowed a hearing before a hearing officer prior to Barden denying his claim. Cosby’s
argument is not well taken.
As noted above Cosby met with the Defendant Barden to discuss A8130E in August
2011 prior to Cosby issuing his no reasonable cause determination. (Doc. #26, ¶ 19). On
December 13, 2011, Cosby was sent a Final Investigative Report (FIR) and Notice of
Dismissal informing him that A8130E had been dismissed because the investigation found
no reasonable cause to pursue the 444claim. (Doc. #26, ¶19). On December 13, 2011, the
Defendant Valenti sent Cosby a letter concurring with the Notice and FIR denying A8130E.
(Doc. #26, ¶23). Thus, Cosby was given sufficient written notice that his claim was being
denied for failure to present any reasonable cause.
Furthermore, Cosby was allowed an opportunity to appeal the denial through Lee
County’s staff review process. Pursuant to Ordinance 00-18 “[a] Charging Party may request
a staff review of the determination” if a no reasonable cause determination was found by the
investigator. (Doc. #27-1, p. 9, § III, ¶ L(2)). Cosby requested a staff review and on December
22, 2011, Cosby was sent a letter informing him that a county attorney would perform a review
of Barden’s investigation of A8130E. On March 24, 2012, Cosby was sent a letter informing
him the LCOEO had requested an independent review of his case file. (Doc. #26, ¶34). The
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Miami EEOC District Office handled Cosby’s case to ensure that the review was balanced.
(Doc. #26, ¶34). On April 3, 2012, Cosby received a letter from Barden informing him that
the EEOC upheld the LCOEO’s no reasonable cause determination. (Doc. #26, ¶¶37-38).
Thus, Cosby was given adequate procedural due process regarding the review of his claim.
Based upon the factors required to establish a claim for procedural due process, the
Court finds that Cosby did not have a property interest in a hearing or notice that Barden was
going to deny his claim. He was given adequate procedures to protect his constitutional rights
and contest the LCOEO’s determination denying his claim. Thus he was not denied due
process.
(4) Equal Protection Violations
Cosby argues that Barden, in his individual capacity Count III, and Count IV, in his
official capacity, violated the equal protection clause because Barden grouped him in the
category of individuals who were determined to have no reasonable cause for a claim versus
similarly situated individuals who were determined to have reasonable cause. Count VI
alleges that Valenti and Sayler violated the Equal Protection Clause because they supported
Barden’s decision in their supervisory capacities.
To state a claim under § 1983, Cosby must plead facts plausibly establishing that he
was “deprived of a right secured by the Constitution or laws of the United States and that the
alleged deprivation was committed under color of state law.” Santillana v. Florida State Court
System, Eighteenth Judicial Circuit, Seminole County Courts, 2010 WL 6774486, *4 (M.D.
Fla. June 4, 2010) (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S. Ct.
977, 143 L.Ed.2d 130 (1999). Cosby sufficiently pleads that the Defendants’ acts were made
under color of state law by alleging that Barden, Sayler and Valenti acted within their
capacities as employees of the LCOEO when they denied claim A1830E. (Doc. No. 20 ¶ 27);
See Griffin v. City of Opa–Locka, 261 F.3d 1295, 1303 (11th Cir.2001) (“A person acts under
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color of state law when he acts with authority possessed by virtue of his employment with the
state.”).
In his Amended Complaint, Cosby fails to establish that he was deprived of a right
secured by the Constitution of the United States. Cosby claims that he was discriminated
against because he was place into a category with people who had their claims denied by the
LCOEO based upon a no reasonable cause determination. In determining suspect classes
for equal protection analysis, the Supreme Court has evaluated whether the group has been
“subjected to ... a history of purposeful unequal treatment,” “relegated to ... a position of
political powerlessness,” or characterized by an immutable trait to which stigma attaches.
Irwin v. Miami-Dade County Public Schools, 2009 WL 465054, *5 (S.D. Fla. February 24,
2009) (citing San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S. Ct.
1278, 36 L.Ed.2d 16 (1973)).
A person whose case was dismissed because of a no
reasonable cause determination does not fall into a protected category, since such a
characteristic relates to an investigative process, and is not an immutable trait which the
Equal Protection Clause intended to protect. See Santillana, 2010 WL 6774486 at *4 (finding
that individuals subjected to the legal process were not a protected class because such a
characteristic was not an immutable trait). Therefore, Barden, nor the LCOEO violated the
Equal Protection Clause.
(5) Whether Barden, Valenti, and Salyer Conspired to Deprive Cosby of his
Constitutional Rights
Cosby alleges that Barden, Valenti and Sayler conspired to deprive him of his property
interest without notice and violated his Fourteenth Amendment procedural due process and
equal protection rights.
The Defendants argue that Cosby makes generalized and
unsupported claims regarding the conspiracy and that they are protected by the intracorporate conspiracy doctrine.
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To establish a prima facie case of a § 1983 conspiracy, a plaintiff must show that “the
defendants reached an understanding to deny the plaintiff's rights.” Burge v. Ferguson, 619
F. Supp. 2d 1225, 1237 (M.D. Fla. 2008) (citing Hadley v. Gutierrez, 526 F.3d 1324, 1332
(11th Cir.2008)); Bendiburg v. Dempsey, 909 F.2d 463, 469 (11th Cir.1990). Additionally, the
plaintiff must show “an underlying actual denial of [his] constitutional rights.” Hadley, 526 F.3d
at 1332. Finally, to allege a conspiracy, a plaintiff must make “particularized allegations” that
a conspiracy exists. Burge, 619 F. Supp. 2d at 1237. Vague and conclusory allegations
suggesting a Section 1983 conspiracy are insufficient. Fullman v. Graddick, 739 F.2d 553,
556–57 (11th Cir.1984); Burge v. Ferguson, 619 F.Supp.2d 1225, 1237 (M.D. Fla. 2008).
Cosby’s conspiracy claim in Count VII alleges that the three (3) LCOEO employees
Barden, and Valenti agreed to dismiss A8130E without notice and without a hearing.
Similarly, Cosby states that Sayler agreed not to stop Barden from dismissing A8130E. Thus,
Cosby says that Barden, Valenti, and Sayler agreed to deprive him of his property interest in
violation of his due process rights. Cosby’s claim lacks merit.
The Court has already determined that under Ordinance 00-18, Cosby did not have a
property interest in a hearing prior to Barden’s no reasonable cause determination.
Therefore, there was no actual denial of a constitutional right since Cosby did not have a
property interest in a hearing. Hadley, 526 F.3d at 1332.
Further, under the intra-corporate conspiracy doctrine, it is impossible “for a single
legal entity consisting of the corporation and its agents to conspire with itself.” McAndrew v.
Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir.2000); see also Doherty v. Haverford
Twp., 513 F.Supp.2d 399, 409 (E.D. Pa.2007) (“[A] municipality and its officials are
considered a single entity that cannot conspire with itself.”). An exception to the single entity
doctrine exists where employees pursue their own, independent interests entirely apart from
those of the employer, Vega v. Artus, 610 F.Supp.2d 185, 205 (N.D.N.Y. 2009), but Cosby
14
has not alleged that the LCOEO employees acted in their own independent interests rather
than the interests of the LCOEO.
Because Barden, Valenti, and Sayler all acted in their roles as investigators and
supervisors directly related to their employment with the LCOEO, they are protected by the
intra-corporate conspiracy doctrine.
As such, Cosby’s conspiracy claim is due to be
dismissed.
Accordingly, it is now
ORDERED:
The Defendants, Lee County, Jack Barden, Paul Valenti and Glen Salyer's Dispositive
Motion to Dismiss Amended Complaint (Doc. #27) is GRANTED. The case is DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly, terminate any pending
motions and close the file.
DONE and ORDERED in Fort Myers, Florida this 23rd day of September, 2014.
Copies: All Parties of Record
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