Wyttenbach v. State of Florida et al
Filing
53
OPINION AND ORDER granting 47 Colorado Defendants' Motion to Dismiss Fourth Amended Complaint; granting 48 Florida Department of Health's Motion to Dismiss Plaintiff's Fourth Amended Complaint with Prejudice; granting 49 Wash ington Defendants' Motion to Dismiss Plaintiff's Fourth Amended Complaint. All claims asserted against the State of Colorado, the Colorado Department of Public Health and Environment, the Florida Department of Health, the State of Washingt on, and the Washington Department of Health are dismissed with prejudice. Within fourteen (14) days of this Opinion and Order, plaintiff shall advise the Court as to whether the other defendants named in the Fourth Amended Complaint were served with process. Failure to comply will result in the case being closed without further notice. See Opinion and Order for details. Signed by Judge John E. Steele on 4/18/2017. (AMB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILLIAM H. WYTTENBACH,
Plaintiff,
v.
Case No: 2:15-cv-318-FtM-29MRM
STATE OF FLORIDA, FLORIDA
DEPARTMENT OF HEALTH, STATE
OF
TENNESSEE,
TENNESSEE
DEPARTMENT OF HEALTH, MOLLY
GASS,
ESQ.,
STATE
OF
COLORADO,
COLORADO
DEPARTMENT OF HEALTH, DRUG
ENFORCEMENT ADMINISTRATION,
UNKNOWN DEA AGENT, STATE OF
WASHINGTON,
WASHINGTON
DEPARTMENT
OF
HEALTH,
KENTUCKY MEDICAL BOARD, and
KY AGO OFFICE,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of Colorado
Defendants’ Motion to Dismiss Fourth Amended Complaint (Doc. #47)
filed on February 3, 2017; Florida Department of Health’s Motion
to Dismiss Plaintiff’s Fourth Amended Complaint with Prejudice
(Doc. #48) filed on February 8, 2017; and Washington Defendants’
Motion to Dismiss Plaintiff’s Fourth Amended Complaint (Doc. #49)
filed
on
February
8,
2017. 1
Plaintiff
filed
a
Response
to
Defendants’ Motions to Dismiss (Doc. #51) on March 31, 2017 and
Colorado Defendants filed a Reply (Doc. #52) on April 3, 2017. 2
For the reasons stated below, the motions are due to be granted.
I.
On May 26, 2015, plaintiff brought this action.
Plaintiff’s
Fourth
Amended
Complaint,
the
(Doc. #1.)
operative
pleading
before the Court, appears to assert claims against the following
defendants:
DEA Drug Enforcement Agency; Unknown DEA Agent; State
of Florida; Florida Department of Health; State of Tennessee;
Tennessee
Department
of
Health;
Molly
Gass,
Esq.;
State
of
Colorado; Colorado Department of Health; State of Washington;
Washington Department of Health; Kentucky Medical Board; and the
Kentucky Attorney General Office. 3
(Doc. #46, p. 1.)
1
The State of Washington and Washington Department of Health
join, adopt, and incorporate by reference the motions to dismiss
filed by the other defendants. (Doc. #49, p. 2.)
2
Colorado Defendants did not request leave of Court to file
a Reply as required by the local rules.
M.D. Fla. R. 3.01(c).
Therefore, the Reply will not be considered in this ruling.
3
Only the Colorado Defendants, the Florida Department of
Health, and the Washington Defendants have filed motions to dismiss
in this case. (Docs. ##47, 48, 49.) While the other defendants
have not responded to plaintiff’s Fourth Amended Complaint, or
otherwise appeared in this case, the Court is unable to determine
whether they were served in this matter. The docket only indicates
that three summonses were issued – for the State of Colorado, State
of Florida, and State of Tennessee (Doc. #3), and no returns of
service have been filed.
2
The crux of plaintiff’s Fourth Amended Complaint is that he
is
a
medical
doctor
whose
license
was
improperly
suspended by various states and their agencies.
revoked
or
(See Doc. #49.)
While not entirely clear, it appears that plaintiff is attempting
to set forth causes of action for RICO, due process violations,
and libel.
Public
Defendants State of Colorado, Colorado Department of
Health
and
Environment
(“CDPHE”)
(together
“Colorado
Defendants”), Florida Department of Health (“FDOH”), State of
Washington, and Washington Department of Health (“WDOH”) (together
“Washington Defendants”) have moved to dismiss plaintiff’s claims
against them.
(Docs. ##47, 48, 49.)
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).
“more
than
an
unadorned,
This requires
the-defendant-unlawfully-harmed-me
3
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,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare
recitals
of
the
elements
of
a
cause
of
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678.
with
a
Iqbal,
“Factual allegations that are merely consistent
defendant’s
plausible.”
action,
liability
fall
short
of
being
facially
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012) (citations omitted).
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 Am./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
affirmative defense in their complaint.
4
required
to
negate
an
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.
See also La Grasta, 358 F.3d at 845 (“[A] Rule 12(b)(6)
dismissal on statute of limitations grounds is appropriate only if
it is ‘apparent from the face of the complaint’ that the claim is
time-barred” (quoting Omar ex rel. Cannon v. Lindsey, 334 F.3d
1246, 1251 (11th Cir. 2003))); Douglas v. Yates, 535 F.3d 1316,
1321 (11th Cir. 2008)(same).
A pleading drafted by a party proceeding pro se, like the
Fourth 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.
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.
A. Shotgun Pleading
This Court has dismissed plaintiff’s complaints on three
previous
occasions
for
their
failure
5
to
conform
to
pleading
standards.
(Docs. ##29, 37, 45.)
The Court has given plaintiff
ample opportunity to cure the pleading deficiencies and, despite
being given these opportunities and warned that dismissal would
result if the deficiencies remained, plaintiff’s Fourth Amended
Complaint is no improvement from plaintiff’s previous attempts.
Rather
than
plaintiff
comply
attempts
with
to
the
Court’s
set
forth
previous
his
instructions,
claims
while
also
intermittently responding to issues he disagrees with in the
Court’s December 21, 2016 Order.
(See Doc. #46.)
The Court finds
that the Fourth Amended Complaint being a shotgun pleading warrants
dismissal with prejudice.
(See Doc. #45, p. 5.)
The Court also
finds that even if plaintiff’s Fourth Amended Complaint was not a
shotgun pleading, plaintiff’s Fourth Amended Complaint would still
be subject to dismissal with prejudice against the defendants who
have filed motions to dismiss for the reason set forth below.
B. Eleventh Amendment Immunity
Each defendant moves to dismiss the claims against it as
barred by the Eleventh Amendment.
p. 2; Doc. #49, pp. 4-5.)
(Doc. #47, pp. 2-5; Doc. #48,
Plaintiff responds that Eleventh
Amendment immunity does not apply.
(Doc. #51, pp. 4-6.)
The Eleventh Amendment of the United States Constitution
provides:
The Judicial power of the United States shall
not be construed to extend to any suit in law
or equity, commenced or prosecuted against one
6
of the United States by Citizens of another
State, or by Citizens or Subjects of any
Foreign State.
U.S. Const. Amend. XI.
Despite its literal language, the Eleventh
Amendment also precludes suits by citizens against their own states
in federal court, Tenn. Student Assistance Corp. v. Hood, 541 U.S.
440, 446 (1973) (collecting cases), and suits in federal courts
against an agency that is an arm of the state,
Williams v. Dist.
Bd. of Trs. of Edison Cmty. Coll., 421 F.3d 1190, 1192 (11th Cir.
2005) (citation omitted); Miccosukee Tribe of Indians of Fla. v.
Fla. State Athletic Comm'n, 226 F.3d 1226, 1231 (11th Cir. 2000).
The State of Colorado and the State of Washington are clearly
states.
The CDPHE is a state agency that functions as an arm of
the State of Colorado. See Colo. Rev. Stat. § 24-1-110(1) (listing
the CDPHE as one of twenty principal departments to which “all
executive
and
instrumentalities
administrative
of
the
offices,
executive
agencies,
department
government” are allocated); id. § 24-1-119.
of
the
and
state
Its department head
is appointed by the governor with the consent of the state senate,
id. § 24-1-119(1), and it is empowered with a wide range of
authority relating to the health of Colorado residents, see e.g.,
id. §§ 25-1.5-101 to 25.1.5-110.
Plaintiff has not offered any
basis for the Court to conclude that CDPHE is not an agency of the
State of Colorado.
7
The FDOH is also an agency of the State of Florida and
functions as an arm of the State of Florida.
20.43.
See Fla. Stat. §
The purpose of the FDOH is to “protect and promote the
health of all residents and visitors in the state through organized
state and community efforts, including cooperative agreements with
counties.” Id. § 20.43(1).
The head of the FDOH is the state
surgeon general who is appointed by the governor with the consent
of the senate.
Id. § 20.43(2).
Plaintiff has not offered any
basis for the Court to conclude that the FDOH is not an agency of
the State of Florida.
The WDOH is also an agency of the State of Washington and
functions as an arm of the State of Washington.
Code § 43.70.020.
See Wash. Rev.
The WDOH has a wide range of authority relating
to the health of Washington residents. Id. §§ 43.70.005, 43.70.020.
The head of the FDOH is the secretary of health, who is appointed
by the governor.
Id. § 43.70.030.
Plaintiff has not offered any
basis for the Court to conclude that the WDOH is not an agency of
the State of Washington.
The State of Colorado, the CDPHE, the FDOH, the State of
Washington,
Amendment
abrogated.
and
the
immunity
WDOH
unless
are
therefore
their
immunity
entitled
has
to
been
Eleventh
waived
or
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984); Seminole Tribe of Fla. v. Florida, 11 F.3d 1016,
1021-22 (11th Cir. 1994).
The Court finds that these defendants
8
have not waived their Eleventh Amendment immunity and no statute
abrogates it. 4
Plaintiff alleges that 28 U.S.C. § 3002 section 15A defines
the United States as a federal corporation and that this Court is
an Article IV court, not an Article III court, and no immunity is
conferred in an Article IV court.
(Doc. #51, p. 4.)
First, the
section cited by plaintiff is within the Fair Debt Collection
Procedure, therefore inapplicable to the issues before the Court.
Therefore, the Court rejects this argument.
The Court likewise
rejects plaintiff’s position that this Court is an Article IV
court, in which immunity does not apply. See U.S. Const. art. III,
§ 1; 28 U.S.C. §§ 89, 132.
Plaintiff also asserts that the Ex parte Young exception 5 to
Eleventh Amendment immunity applies to the case at hand.
(Doc.
#51, p. 6.)
“Under the doctrine of Ex parte Young, there is a long and
well-recognized exception to [Eleventh Amendment immunity] for
4
While these states have waived immunity to some suits in
state courts, this does not waive immunity in federal courts. See
Colo. Rev. Stat. § 24-10-106; Fla. Stat. § 768.28; Wash. Rev. Code
§ 4.92.090; Schopler v. Bliss, 903 F.2d 1373, 1379 (11th Cir.
1990); Skokomish Indian Tribe v. France, 269 F.2d 555, 562 n.20
(9th Cir. 1959) (citation omitted); Verner v. Colorado, 533 F.
Supp. 1109, 1114 (D. Colo. 1982) (citing Edelman v. Jordan, 415
U.S. 651, 677 n.19 (1974)).
5
Ex parte Young, 209 U.S. 123 (1908).
9
suits against state officers seeking prospective equitable relief
to end continuing violations of federal law.” Fla. Ass’n of Rehab.
Facilities, Inc. v. State of Fla. Dep’t of Health and Rehab.
Servs., 225 F.3d 1208, 1219 (11th Cir. 2000) (citations omitted).
Ex parte Young applies only when state officials are sued for
prospective relief in their official capacity.
While the Ex parte
Young exception applies to state officials, it does not apply to
state agencies.
Cir.
2006)
Eubank v. Leslie, 210 F. App’x 837, 844 (11th
(“State
agencies,
however,
are
never
subject
to
unconsented suit, even under the doctrine of Ex parte Young. . .
. It does not permit suit against state agencies or the state
itself, even when the relief is prospective.” (citing Halderman,
465 U.S. at 100-03)).
This is because “[t]he theory behind Ex
parte Young is that a suit alleging a violation of the federal
constitution against a state official in his official capacity for
injunctive relief on a prospective basis is not a suit against the
state, and, accordingly, does not violate the Eleventh Amendment.”
Camm v. Scott, 834 F. Supp. 2d 1342, 1348 (M.D. Fla. 2011) (quoting
Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011)).
The
defendants whose motions to dismiss are before the Court are not
state officials in their official capacities.
Therefore, the Ex
parte Young exception is inapplicable to the State of Colorado,
the CDPHE, the FDOH, the State of Washington, and the WDOH.
10
Plaintiff
also
suggests
that
section
1983
waives
any
potential Eleventh Amendment immunity these defendants may have.
(Doc. #51, pp. 6-11.)
It is clearly established that section 1983 does not waive
the
State
of
Colorado,
the
CDPHE,
the
FDOH,
the
Washington, or the WDOH’s Eleventh Amendment immunity.
State
of
“Congress
has not abrogated Eleventh Amendment immunity in section 1983
cases.” Cross v. Ala. State Dep’t of Mental Health & Mental
Retardation, 49 F.3d 1490, 1502 (11th Cir. 1995) (citing Carr v.
City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990)).
See also
Gamble v. Fla. Dep’t of Health & Rehab. Servs., 779 F.2d 1509,
1512 (11th Cir. 1986). In Monell v. Department of Social Services,
the Supreme Court held that “persons” within the meaning of section
1983
includes
individuals,
government units.
municipalities,
and
436 U.S. 658, 690–91 (1978).
not include a state or an arm of a state.
State Police, 491 U.S. 58, 71 (1989).
other
local
“Persons” does
Will v. Mich. Dep't of
Accordingly, the State of
Colorado, the CDPHE, the FDOH, the State of Washington, and the
WDOH are not persons under section 1983.
For the reasons stated herein, the Court grants defendants’
Motions to Dismiss (Docs. ##47, 48, 49) and dismisses the claims
against the State of Colorado, the Colorado Department of Public
Health and Environment, the Florida Department of Health, the State
11
of
Washington,
and
the
Washington
Department
of
Health
with
prejudice.
The Court orders plaintiff to advise the Court within fourteen
(14) days of this Opinion and Order whether the other defendants
referenced
process.
in
the
Fourth
Amended
Complaint
were
served
with
If plaintiff fails to file anything within this fourteen
day period, the Court will direct the Clerk to terminate any and
all pending motions and close the file.
Accordingly, it is now
ORDERED:
1. Colorado Defendants’ Motion to Dismiss Fourth Amended
Complaint (Doc. #47) is GRANTED;
2. Defendant Florida Department of Health’s Motion to Dismiss
Plaintiff’s Fourth Amended Complaint with Prejudice (Doc. #48) is
GRANTED;
3.
Washington
Defendants’
Motion
to
Dismiss
Plaintiff’s
Fourth Amended Complaint (Doc. #49) is GRANTED;
4. All claims asserted against the State of Colorado, the
Colorado Department of Public Health and Environment, the Florida
Department of Health, the State of Washington, and the Washington
Department of Health are dismissed with prejudice.
5. Within fourteen (14) days of this Opinion and Order,
plaintiff shall advise the Court as to whether the other defendants
named in the Fourth Amended Complaint were served with process.
12
Failure to comply will result in the case being closed without
further notice.
DONE AND ORDERED at Fort Myers, Florida, this __18th__ day of
April, 2017.
Copies: Parties of record
13
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