Verrier v. Perrino et al
Filing
46
OPINION AND ORDER granting in part and denying in part 36 defendants' Motion to Dismiss Third Amended Complaint. Defendants shall file a responsive pleading to plaintiff's Third Amended Complaint within fourteen days of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 8/4/2016. (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 and
DIANE LAPAUL, Supervisor,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of defendants’
Motion to Dismiss Third Amended Complaint (Doc. #36) filed on
January 8, 2016.
Plaintiff filed a Response and a Request for
Appointment of an Attorney (Doc. #38) on January 21, 2016. 1
I.
Plaintiff’s Third Amended Complaint (Doc. #35) contains the
following allegations:
following
a
conviction
Plaintiff is a Sex Offender probationer
in
the
state
of
Wisconsin
for
child
enticement of a 17-year old. (Id. ¶ 2.) 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
1
Plaintiff’s Request for Appointment of an Attorney has been
addressed by a separate Order. (See Doc. #40.)
Corrections (“DOC”). (Id. ¶¶ 2-3.) On October 28, 2014, plaintiff
attended a family court hearing where defendant FDOC Agent Perrino
was called to testify.
Perrino
was
subjected
(Id. ¶ 20.)
to
harsh
During the hearing, Agent
cross-examination
and,
after
testifying, was heard saying “never again, those two can’t get
along and I am treated like a criminal, never again.” 2
(Id. ¶ 22.)
Prior to the October 28th hearing, plaintiff was permitted to have
regular phone conversations with his children, to have computer
and internet access, and to volunteer at his church.
The
day
after
the
hearing,
previously granted permissions:
LaPaul
rescinded
(Id. ¶ 21.)
the
following
phone contact with his children,
internet and computer use, and volunteering at his church.
(Id.
¶¶ 25, 35.)
On December 24, 2014, plaintiff went to a restaurant without
part of his GPS unit, or without his entire GPS unit, with him.
(Id. ¶ 36.)
plaintiff
Upon realizing that he had forgotten the unit,
notified
a
Cape
Coral
police
officer
that
he
had
forgotten his GPS unit, returned home, and contacted the DOC.
(Id.) The next day, Agent Perrino arrested plaintiff for violation
of probation.
(Id.)
On December 24, 2014, a Lee County Judge
held that plaintiff had not violated his probation by failing to
2
Although unclear, the Court believes that “those two” refers
to LaPaul and plaintiff.
2
take the unit with him to the restaurant because GPS monitoring
had not been ordered, and therefore Florida Statute § 948.305(2)(e)
did not apply to plaintiff.
(Id. ¶ 37.)
Following this incident,
Agent Perrino re-imposed GPS monitoring on plaintiff.
Plaintiff
alleges
that
he
made
multiple
(Id.)
complaints
and
reports regarding Agent Perrino and Supervisor LaPaul’s actions
(id. ¶¶ 28-29, 45), and that Agent Perrino and Supervisor LaPaul
made repeated threats to plaintiff, (id. ¶¶ 42-44).
On December 29, 2014, plaintiff brought this action against
Agent
Peter
Perrino
and
Supervisor
Diane
LaPaul.
(Doc.
#1.)
Plaintiff has since amended his Complaint three times, resulting
in
the
Third
Amended
Complaint
currently before the Court.
being
the
operative
pleading
While it is still somewhat unclear,
the Court believes that Plaintiff’s Third Amended Complaint sets
forth
the
following
causes
of
action:
(1)
First
Amendment
Retaliation, (2) Violation of Equal Protection pursuant to 42
U.S.C. § 1983, (3) Challenging Fla. Stat. § 948.30(1)(e) as a
Violation
of
Due
Process,
and
(4)
Challenging
Fla.
Stat.
§
948.03(1)(d) as a Violation of Due Process. (Doc. #35.) On January
8, 2016, defendants moved to dismiss plaintiff’s Third Amended
Complaint. (Doc. #36.)
The arguments presented in defendants’
Motion to Dismiss are not directed toward particular counts, but
instead are presented in a more generic manner. The Court believes
this
is
due
to
the
manner
that
3
plaintiff
has
presented
his
allegations.
defendants’
The Court will address the arguments presented in
Motion
indeterminate
to
causes
Dismiss
of
as
actions
they
are
alleged
applicable
as
the
Court
to
the
deems
appropriate.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation
omitted).
To survive dismissal, the factual allegations must be
“plausible” and “must be enough to raise a right to relief above
the speculative level.”
Id. at 555.
See also Edwards v. Prime
Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
than
an
unadorned,
This requires “more
the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations
omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.
Berzain,
654
F.3d
1148,
1153
4
(11th
Cir.
Mamani
2011)(citations
omitted).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent
with
a
facially plausible.”
1337
(11th
omitted).
Cir.
“Factual allegations that are merely
defendant’s
liability
fall
short
of
being
Chaparro v. Carnival Corp., 693 F.3d 1333,
2012)(internal
quotation
marks
and
citations
Thus, the Court engages in a two-step approach: “When
there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
“Generally, the existence of an affirmative defense will not
support a motion to dismiss,” Quiller v. Barclays American/Credit,
Inc., 727 F.2d 1067, 1069 (11th Cir. 1984), aff’d on reh'g, 764
F.2d 1400 (11th Cir. 1985) (en banc) (per curiam) (reinstating
panel opinion), because plaintiffs are not required to negate an
affirmative defense in their complaint.
La Grasta v. First Union
Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).
A complaint may
be dismissed, however, when the existence of an affirmative defense
“clearly appears on the face of the complaint.” Quiller, 727 F.2d
at 1069.
A pleading drafted by a party proceeding pro se, like the
Third Amended Complaint at issue here, is held to a less stringent
standard than one drafted by an attorney, and the Court will
construe the allegations contained therein liberally.
5
Jones v.
Fla. Parole Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015).
“This
liberal construction, however, does not give a court license to
serve as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.’” Hickman v.
Hickman, 563 F. App’x 742, 743 (11th Cir. 2014) (internal quotation
marks and citations omitted).
Pro se parties are still required
to conform to the procedural rules. Id.
III.
Defendants
Complaint
for
move
to
failure
discrimination,
failure
dismiss
plaintiff’s
Third
Amended
to
state
a
claim
for
intentional
to
state
a
claim
for
supervisory
liability, failure to state a claim for violation of due process
and equal protection, failure to exhaust administrative remedies,
qualified immunity, failure to allege supervisory liability, and
failure to state a claim pursuant to the Interstate Compact. (Doc.
#36.)
Defendants have not articulated which count or counts the
legal arguments included in its Motion to Dismiss are directed
toward.
As
such,
the
Court
will
first
address
defendants’
arguments that apply to plaintiff’s Third Amended Complaint as a
whole — that plaintiff’s claims are premature for failure to
exhaust administrative remedies and that the Interstate Compact
does not create a federal right or remedy — then proceed to analyze
the remaining arguments as the Court deems applicable to each
individual count.
6
A. Failure to Exhaust Administrative Remedies
Defendants assert that plaintiff has failed to exhaust his
administrative remedies prior to initiating this action. (Doc.
#36, pp. 21-27.)
Specifically, defendants assert that plaintiff
was required to exhaust the grievance procedures set forth in
Florida
Administrative
Code,
Rule
33-302.101
pursuant
to
the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). (Id.)
The
remedies
PLRA
requires
prior
to
conditions.
prisoners
bringing
an
to
action
42 U.S.C. § 1997e(a).
exhaust
with
administrative
respect
to
prison
“[T]he term ‘prisoner’ means
any person incarcerated or detained in any facility who is accused
of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program.” 42 U.S.C.
§ 1997e(h).
Defendants assert that the PLRA required plaintiff to
exhaust all administrative grievance procedures outlined in Rule
33-302.101 prior to initiating suit.
However, at the time this
lawsuit was filed, plaintiff was a probationer and did not fit the
definition of a prisoner under the PLRA.
Defendants have not
pointed to any other authority that requires plaintiff to exhaust
the administrative grievance procedures prior to filing suit.
Accordingly, defendant’s motion to dismiss on the basis of failure
to exhaust administrative remedies is denied.
7
B. Interstate Compact
Defendants argue that the Interstate Compact does not create
an enforceable right or cause of action for plaintiff, alluding to
the fact that plaintiff has attempted to bring his claims pursuant
to the Interstate Compact.
The
Court
agrees
(Doc. #36, pp. 15-17.)
that
the
Interstate
Compact
for
Adult
Offender Supervision does not create a private right of action.
M.F. v. State of N.Y. Exec. Dep’t Div. of Parole, 640 F.3d 491,
495-97 (2d Cir. 2011) (finding special conditions could not be
challenged on the basis that the conditions violated the Interstate
Compact).
Plaintiff’s Third Amended Complaint does not allege
that the defendants’ actions violated the Interstate Compact for
Adult
Offender
defendants’
Supervision,
actions
violate
but
the
instead
United
alleges
States
that
the
Constitution.
Accordingly, the Court denies defendants’ Motion to Dismiss on the
basis that the Interstate Compact for Adult Offender Supervision
does not create a private cause of action.
C. Count I:
Retaliation
Count I of plaintiff’s Third Amended Complaint alleges that
defendants
retaliated
against
plaintiff
for
constitutional right to attend a court hearing.
53.)
exercising
his
(Doc. #35, ¶¶ 20-
The Court does not find any arguments within defendants’
motion to dismiss that plaintiff has failed to state a viable cause
of action in Count I.
Defendants have alleged, however, that they
8
are entitled to qualified immunity for claims against them in their
individual capacities and that plaintiff has failed to allege
supervisory liability against LaPaul.
(1)
Qualified Immunity
Qualified
immunity
is
an
affirmative
defense.
While
generally a plaintiff need not negate an affirmative defense in
its complaint, “[a] complaint is subject to dismissal under Rule
12(b)(6)
when
its
allegations,
on
their
face,
show
that
an
affirmative defense bars recovery on the claim.” Cottone v. Jenne,
326 F.3d 1352, 1357 (11th Cir. 2003) (citation omitted).
“Once
the affirmative defense of qualified immunity is advanced . . .
[u]nless the plaintiff’s allegations state a claim of violation of
clearly established law, a defendant pleading qualified immunity
is entitled to dismissal before the commencement of discovery.”
Marsh v. Butler County, 268 F.3d 1014, 1022 (11th Cir. 2001) (en
banc), abrogated on other grounds by Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007).
“The Supreme Court has urged [courts] to
apply the affirmative defense of qualified immunity at the earliest
possible stage in litigation because the defense is immunity from
suit and not damages only.”
Id. (citation omitted).
Qualified immunity protects “government officials performing
discretionary functions . . . from liability from civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
9
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“To receive qualified immunity, a government official must first
prove that he was acting within his discretionary authority.”
Cottone, 326 F.3d at 1357.
Once this is established, “the burden
shifts to the plaintiff to show that the defendant is not entitled
to qualified immunity.”
Id. at 1358 (citation omitted).
In doing
so, “the plaintiff must establish that the defendant violated a
constitutional right.
Then, the plaintiff must show that the
violation was clearly established.”
Griffin Indus. Inc. v. Irvin,
496 F.3d 1189, 1199 (11th Cir. 2007) (citations omitted).
a.
Scope of Defendants’ Discretionary Authority
The
first
step
in
a
qualified
immunity
analysis
is
to
determine whether defendants established that the actions at issue
were within the scope of their discretionary authority.
326 F.3d at 1357.
Cottone,
Defendants assert that probation officers and
supervisors are authorized by Florida Statute 948.06(1)(a) to
arrest probationers when there are reasonable grounds to believe
that the probationer violated their probation.
(Doc. #36, p. 20.)
The
well
Court
agrees
that
these
actions
discretionary functions of defendants.
are
within
the
While the Court finds that
defendants’ actions of arresting plaintiff for allegedly violating
his
probation
are
within
the
scope
of
their
discretionary
functions, plaintiff has alleged numerous other acts within Count
10
I as violative of his constitutional rights. 3
Accordingly, the
Court finds that defendants have met their burden of establishing
that their arrest of plaintiff for violating probation was within
the scope of their discretionary functions, but have not met their
burden as to the remainder of the allegations within Count I.
b.
As
Constitutional Violation of Clearly Established Law
to
the
allegations
involving
defendants’
arrest
of
plaintiff, plaintiff now bears the burden of establishing that
this amounted to a constitutional violation of clearly established
law
to
overcome
defendants’
qualified
immunity
affirmative
defense.
“The essence of qualified immunity analysis is the public
official’s objective reasonableness, regardless of his underlying
intent or motivation.”
Rushing v. Parker, 599 F.3d 1263, 1266
(11th Cir. 2010) (citation omitted).
A probation officer has the
authority to arrest a probationer when “there are reasonable
grounds to believe that [the] probationer . . . has violated his
or her probation . . . .”
Fla. Stat. § 948.06(1)(a).
Here,
plaintiff went to a restaurant with only part of his GPS unit.
(Doc. #35, ¶ 36.)
Upon realizing he had forgotten the unit,
3
Plaintiff also alleges that defendants rescinded previously
granted permissions and made threats to plaintiff in retaliation
of exercising his first amendment rights.
Defendants have not
alleged they are entitled to qualified immunity for these actions.
11
plaintiff notified a nearby police officer, returned home, and
notified the DOC.
(Id.)
The next day, he was arrested and placed
in jail for probation violation.
(Id.)
While the state court
later determined that plaintiff had not violated his probation
because the monitoring was not properly imposed as a condition of
his probation, at the time of the arrest, it appears that both
plaintiff
and
defendants
condition
of
believed
plaintiff’s
that
probation.
GPS
The
monitoring
Court
was
finds
a
that
defendants had arguable probable cause and reasonable grounds to
believe that plaintiff had violated his probation.
Accordingly,
the Court does not find that there was a constitutional violation
of clearly established law.
As such, defendants are entitled to
qualified
to
immunity
only
as
their
arrest
of
plaintiff
for
allegedly violating his probation.
(2)
Supervisory Liability
Defendants next assert that Count I should be dismissed
against defendant LaPaul because plaintiff has failed to establish
supervisory liability against LaPaul for Perrino’s actions. (Doc.
#36, pp. 13-14.)
“It
is
supervisory
well
established
officials
unconstitutional
acts
are
of
in
not
their
[the
liable
Eleventh]
12
that
under
§
1983
for
subordinates
on
the
basis
respondeat superior or vicarious liability.”
1360 (citation omitted).
Circuit
the
of
Cottone, 326 F.3d at
[S]upervisory liability under § 1983 occurs either when
the supervisor personally participates in the alleged
unconstitutional conduct or when there is a causal
connection between the actions of a supervising official
and the alleged constitutional deprivation.
The
necessary causal connection can be established “when a
history of widespread abuse puts the responsible
supervisor on notice of the need to correct the alleged
deprivation, and he fails to do so.” Alternatively, the
causal connection may be established when a supervisor's
“‘custom or policy . . . result[s] in deliberate
indifference to constitutional rights’” or when facts
support “an inference that the supervisor directed the
subordinates to act unlawfully or knew that the
subordinates would act unlawfully and failed to stop
them from doing so.”
Id. (citations omitted).
Count
I
alleges
that
in
retaliation
for
making
Perrino
testify, LaPaul called plaintiff and revoked plaintiff’s preexisting permissions. (Doc. #35, ¶ 25.)
Viewing the allegations
in the light most favorable to the plaintiff, the Court finds that
these allegations are sufficient to allege that LaPaul directly
and actively participated in the alleged unconstitutional conduct.
Accordingly, defendants’ motion to dismiss Count I on the basis
that supervisory liability has not been alleged is denied.
D. Count II: Intentional Discrimination in Violation of Equal
Protection Clause
Count II of plaintiff’s Third Amended Complaint asserts a
claim for intentional discrimination in violation of the equal
protection clause. (Doc. #35, ¶¶ 54-75.)
Defendants move to
dismiss Count II on the basis that plaintiff has failed to state
a claim for intentional discrimination in violation of the equal
13
protection clause, defendants are entitled to qualified immunity
in their individual capacities, and plaintiff has not established
supervisory liability against LaPaul.
(1)
Failure to State a Claim
Defendants allege that plaintiff has failed to state a claim
for
intentional
discrimination
in
violation
of
the
equal
protection clause because plaintiff has: (1) failed to allege
disparate
treatment
against
sex
offender
probationers
when
compared to probationers generally, (2) failed to make a “class of
one”
argument,
and
(3)
failed
to
intentionally discriminated against him.
demonstrate
defendants
(Doc. #36, pp. 4-7, 13.)
The Fourteenth Amendment prohibits states from “deny[ing] to
any person within its jurisdiction the equal protection of the
laws.”
U.S. Const. amend XIV, § 1.
The “purpose of the equal
protection clause of the Fourteenth Amendment is to secure every
person within the State’s jurisdiction against intentional and
arbitrary discrimination, whether occasioned by express terms of
a statute or by its improper execution through duly constituted
agents.” Village of Willowbrook v. Olech, 528 U.S. 562, 565 (2000)
(quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445
(1923)).
“[T]o properly plead an equal protection claim, a plaintiff
need only allege that through state action, similarly situated
persons have been treated disparately.”
14
Busse v. Lee County, 317
F. App’x 968, 973 (11th Cir. 2009) (quoting Thigpen v. Bibb County,
223 F.3d 1231, 1237 (11th Cir. 2000)).
The Eleventh Circuit
recognizes claims for intentional discrimination in violation of
the equal protection clause where plaintiff alleges that he is
part of a class that is being treated disparately and where
plaintiff adequately sets forth a “class of one” theory.
Village of Willowbrook, 528 U.S. at 565.
protection
claim
does
not
allege
See
“A ‘class of one’ equal
discrimination
against
a
protected class, but rather asserts that the plaintiff has been
intentionally treated differently from others similarly situated
and
that
there
is
no
rational
basis
for
the
difference
in
treatment.” Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558
F.3d 1301, 1306 (11th Cir. 2009) (citation omitted).
Within plaintiff’s Third Amended Complaint, plaintiff alleges
that
defendants,
as
appointed
supervisors
by
the
Florida
Department of Corrections, acting under color of law, treated
plaintiff differently than similarly situated probationers.
#35, ¶¶ 3, 10, 54, 57, 59-60, 62-63, 72.)
allegations
sufficient
to
state
an
(Doc.
The Court finds these
equal
protection
claim.
Accordingly, defendants’ motion to dismiss Count II of plaintiff’s
Third Amended Complaint for failure to state a claim is denied.
(2)
Qualified Immunity
As discussed supra, in asserting the affirmative defense of
qualified immunity, the initial burden is on the defendants to
15
show that the actions at issue were within the scope of their
discretionary
functions.
Here,
defendants
assert
that
their
arrest of plaintiff was within the scope of their discretionary
functions.
(Doc. #36, pp. 17-21.)
Within
Count
II
of
plaintiff’s
Third
Amended
Complaint,
plaintiff alleges that defendants Perrino and LaPaul are applying
supervision statutes to him that are not applied to similarly
situated probationers and imposing special conditions on him that
are not imposed on similarly situated probationers.
Plaintiff has
not alleged that his arrest was discriminatory in violation of the
equal protection clause.
Accordingly, plaintiff’s allegations in
Count II are sufficient to overcome defendants’ assertion of
qualified immunity at this stage of the proceedings.
(3)
Supervisory Liability
Defendants next assert that plaintiff’s claims against LaPaul
should be dismissed because plaintiff has failed to allege a basis
for imposing supervisory liability.
(Doc. #36, pp. 13-14.)
Plaintiff’s Third Amended Complaint alleges that Perrino and
LaPaul
are
requirements
applying
on
plaintiff
situated probationers.
viewing
the
special
that
conditions
are
not
and
applied
supervision
to
(Doc. #35, ¶¶ 61-62, 64, 70.)
allegations
in
the
light
most
similarly
Once again,
favorable
to
the
plaintiff, the Court finds that plaintiff has alleged that LaPaul
was actively and directly involved in the alleged constitutional
16
violations.
Accordingly, defendants’ motion to dismiss Count II
against LaPaul on the basis of supervisory liability is denied.
E. Unconstitutionality of Florida Statute § 948.30(1)(e)
Defendants next argue that plaintiff has failed to state a
claim
challenging
948.30(1)(e).
the
constitutionality
(Doc. #36, pp. 7-11.)
of
Florida
Statute
§
While the Third Amended
Complaint again is not entirely clear what due process violations
are being alleged, 4 defendants address allegations of substantive
and procedural due process violations in their motion to dismiss.
(Id.)
Upon review of the Third Amended Complaint, it appears that
within Count III plaintiff is attempting to allege that Florida
Statute § 948.30(1)(e) is void for vagueness in violation of the
due process clause.
that Florida
Statute
(Id.)
Within Count III plaintiff alleges
948.30(1)(e)
4
is
unconstitutionally
vague
The gravamen of Count III of plaintiff’s Second Amended
Complaint is challenging the constitutionality of Florida Statute
§ 948.30(1)(e) as being void for vagueness. The Court notes that
while there may be additional allegations within Count III
suggesting that plaintiff is attempting to assert additional due
process violations, in light of plaintiff’s pro se status and
interpreting the allegations in the light most favorable to
plaintiff, the Court deems that plaintiff is only asserting a claim
for void for vagueness within Counts III and IV. See Weiland v.
Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1321 (11th Cir.
2015). If plaintiff is attempting to assert additional claims,
plaintiff should request leave of Court to file an amended pleading
setting forth each basis, i.e., cause of action, in a separate
count.
17
because it does not provide “clear guidance as to where plaintiff
may and may not go” (Doc. #35, ¶¶ 76, 102), and without such clear
guidance, plaintiff is unable to determine what he is and is not
prohibited from doing.
Defendants have not alleged that plaintiff has failed to state
a void for vagueness claim. (See Doc. #36.)
declines
to
dismiss
Count
III
of
As such, the Court
plaintiff’s
Third
Amended
Complaint against defendants in their official capacity.
Additionally,
it
is
clear
that
when
challenging
the
constitutionality of a rule of law, plaintiff must bring the
“action against the state official or agency responsible for
enforcing
the
allegedly
unconstitutional
scheme.”
Women’s
Emergency Network v. Bush, 214 F. Supp. 2d 1316, 1317 (S.D. Fla.
2002) (citing ACLU v. The Fla. Bar, 999 F.2d 1486, 1490-91 (11th
Cir.
1993)).
attempting
to
Accordingly,
assert
Count
to
III
the
extent
against
that
plaintiff
defendants
in
is
their
individual capacities, those claims are dismissed with prejudice.
F. Count IV: Unconstitutionality
948.03(1)(d)
of
Florida
Statute
§
Count IV challenges the constitutionality of Florida Statute
§ 948.03(1)(d). (Doc. #35, ¶¶ 106-16.)
As with Count III, while
it is unclear what violations plaintiff is alleging, defendants
address allegations of substantive and procedural due process
violations in their motion to dismiss. (Doc. #36, pp. 7-11.)
18
The Court reads Count IV as asserting a claim that the statute
is void for vagueness – as plaintiff asserted in Count III.
#35, ¶¶ 106-07, 115.)
(Doc.
Defendants, however, do not allege that
plaintiff has failed to state a void for vagueness claim. (See
Doc. #36.)
As such, the Court declines to dismiss Count IV of
plaintiff’s Third Amended Complaint against defendants in their
official capacities.
IV
is
dismissed
For the reasons previously discussed, Count
with
prejudice
against
defendants
in
their
individual capacities. Women’s Emergency Network, 214 F. Supp. 2d
at 1317 (citing ACLU, 999 F.2d at 1490-91).
Accordingly, it is now
ORDERED:
1.
Defendants’ Motion to Dismiss Third Amended Complaint
(Doc. #36) is GRANTED in part and DENIED in part.
a.
Count
I
is
dismissed
without
prejudice
as
to
defendants in their individual capacities only as it
relates to defendants’ arrest of plaintiff for allegedly
violating his probation; defendants’ Motion to Dismiss
Count I is otherwise denied;
b.
Defendants’ Motion to Dismiss Count II is denied;
c.
Counts III and IV are dismissed with prejudice
against
defendants
in
their
individual
capacities;
defendants’ Motion to Dismiss Counts III and IV is
otherwise denied.
19
2.
Defendants
shall
file
a
responsive
pleading
to
plaintiff’s Third Amended Complaint within FOURTEEN (14) DAYS of
this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this __4th__ day of
August, 2016.
Copies:
Parties of record
20
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