Verrier v. Perrino et al
Filing
34
ORDER granting without prejudice 23 defendants' Motion to Dismiss. Plaintiff shall file a Third Amended Complaint within fourteen days of this Opinion and Order. See Order for details. Signed by Judge John E. Steele on 12/4/2015. (AMB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPH M. VERRIER,
Plaintiff,
v.
Case No: 2:14-cv-744-FtM-29CM
PETER PERRINO, Agent
DIANE BELL, Supervisor,
and
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of defendants’
Motion to Dismiss Amended Complaint (Doc. #23) filed on August 13,
2015.
Plaintiff filed a Response to Motion to Dismiss (Doc. #25)
on August 31, 2015, another Response to Motion to Dismiss (Doc.
#28) on September 2, 2015, and an Amended Response in Opposition
to Motion to Dismiss (Doc. #33) on November 5, 2015.
Because it
is unclear what causes of action plaintiff is attempting to assert
and against whom, the Court will require plaintiff to file a Third
Amended
Complaint
in
accordance
with
Federal
Rules
of
Civil
Procedure 8 and 10.
I.
Plaintiff’s Second Amended Complaint contains the following
allegations:
Plaintiff is a Sex Offender probationer following a
conviction in the state of Wisconsin for child enticement under
the age of 17.
(Doc. #18, ¶ 3.)
Pursuant to the Interstate
Compact for Adult Offender Supervision (“ICAOS”), plaintiff had
his supervision transferred to the state of Florida where he is
currently under the supervision of the Florida Department of
Corrections (“FDOC”).
(Id.)
On October 28, 2014, plaintiff
attended a family court hearing where defendant FDOC Agent Perrino
was called to testify. (Id. ¶ 4.)
Since attending the hearing at
which defendant Perrino testified, defendants have “retaliated
against Plaintiff for taking constitutionally protected activity
of attending [the] family court hearing.” (Id.)
hearing,
defendants,
Agents
Perrino
and
following previously granted permissions:
The day after the
Bell,
rescinded
the
phone contact with his
children, internet and computer use, and volunteering at his
church.
(Id. ¶ 5.)
Defendants “are supervising plaintiff inconsistent with the
rules
of
the
Federal
Interstate
Compact
for
Adult
Offender
Supervision” by “imposing GPS monitoring without court order, and
imposing rules which only apply to individuals with dates of
offense having occurred after plaintiff’s date of offense.”
¶ 10.)
(Id.
Defendant Perrino retaliated against plaintiff by advising
plaintiff’s business associates to not to business with him. (Id.
¶
16.)
Plaintiff
“was
arrested
for
non-compliance
with
GPS
monitoring by agent Perrino and Supervisor Bell without any warrant
on December 24, 2014 and held for two days before a Florida judge
2
dismissed
the
Violation
of
Probation
charge
after
explained the Florida statute did not apply to him.”
Plaintiff
(Id. ¶ 19.)
II.
On July 24, 2015, plaintiff filed a Second Amended Complaint
against Agent Peter Perrino and Supervisor Diane Bell of the
Florida Department of Corrections pursuant to 42. U.S.C. § 1983
and the Interstate Compact for Adult Offender Supervision. (Doc.
#18.)
Upon
review
of
plaintiff’s
Second
Amended
Complaint,
it
appears that plaintiff is attempting to lay out, at a minimum, a
couple causes of action.
(Id.)
First, plaintiff seems to be
asserting a 42 U.S.C. § 1983 retaliation claim. (See id. ¶¶ 4-9.)
However,
it
is
not
precisely
clear
if
he
is
asserting
this
retaliation claim against both defendants, or just one, nor is it
clear what protected activity plaintiff engaged in for which he
was then retaliated.
Plaintiff alleges general claims of what he
believes to be retaliatory conduct on behalf of the defendants,
but does not indicate the causal relationship or the alleged basis
for defendants’ retaliation.
It also appears that plaintiff is attempting to bring a
substantive 42 U.S.C. § 1983 claim arising out of violation of the
Interstate Compact for Adult Offender Supervision.
However, the
Second Circuit has held that ICAOS does not create an express or
implied federal private right of action.
3
M.F. v. State of N.Y.
Exec. Dep’t Div. of Parole, 640 F.3d 491 (2d Cir. 2011); Castaneira
v. Potteiger, -- F. App’x --, No. 15-1337, 2015 WL 4385694, at *1(3d
Cir.
July
17,
2015).
There
are
other
allegations
in
plaintiff’s complaint that may be attempts to assert additional
causes of action, but it is unclear what, if any, other causes of
action plaintiff is actually attempting to assert. 1
Accordingly, the Court directs the plaintiff to file a Third
Amended Complaint that clearly lays forth the causes of action
that
plaintiff
is
attempting
to
bring
and
against
whom.
Additionally, the Court directs plaintiff to allege the basic facts
that support the elements of each cause of action asserted.
In the body of the Third Amended Complaint, plaintiff should
clearly describe how each named defendant is involved in each
alleged claim.
Plaintiff must provide support in the statement of
facts for the claimed violations.
More than conclusory and vague
allegations are required to state a cause of action.
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 federal rights
1
Within plaintiff’s Amended Response to Defendants’ Motion
to Dismiss, plaintiff asserts that his “constitutional rights of
equal protection, due process, association and speech are being
infringed by defendants.” (Doc. #33, ¶ 4.) However, these rights
are not clearly alleged within the Complaint.
4
and/or statutes.
Plaintiff must provide support in the statement
of facts for the claimed violations.
Plaintiff is reminded that his pro se status does not free
him from the requirements of the Local Rules of this Court 2 (“Local
Rules”) or the Federal Rules of Civil Procedure 3 (“Fed. R. Civ.
P.”),
which
additional
plaintiff
is
material.
directed
While
the
to
consult
Court
has
before
set
filing
forth
some
obligations and requirements in this Order, this Order does not
set forth all of those requirements and should not be relied upon
as limiting plaintiff's duties and obligations in litigating this
case.
The Court again directs plaintiff to review the “Proceeding
Without a Lawyer.” (Doc. #5-1.)
Accordingly, it is now
ORDERED:
1. Defendants’ Motion to Dismiss (Doc. #23) is granted without
prejudice.
2. Plaintiff’s
Second
Amended
dismissed without prejudice.
Complaint
(Doc.
#18)
is
Plaintiff shall file a Third
Amended Complaint within FOURTEEN (14) DAYS of this Opinion
2
The Local Rules
www.flmd.uscourts.gov.
are
accessible
3
on
the
internet
at
A copy of the current Federal Rules of Civil Procedure can
be obtained at law libraries, book stores, and from other widely
available sources.
5
and Order.
DONE AND ORDERED at Fort Myers, Florida, this __4th__ day of
December, 2015.
Copies:
Plaintiff
Counsel of record
6
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