Bellamy v. Palack et al

Filing 54

OPINION AND ORDER granting 40 Motion to Dismiss for Failure to State a Claim and defendant is dismissed with prejudice; denying as moot 45 Motion for summary judgment. The Clerk shall enter judgment in favor of defendant and against plaintiff, terminate all pending motions and deadlines as moot, and close the file. Signed by Judge John E. Steele on 8/4/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KENNETH BELLAMY,
Plaintiff,
v.

Case No: 2:15-cv-431-FtM-29CM

FIRST CLASS MANAGEMENT LLC,
Defendant.

OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. #40)
filed on March 8, 2017.

Plaintiff filed an Answer-Defense Motion

to Demisss [sic] (Doc. #51) on April 28, 2017.

Also before the

Court is plaintiff’s Motion for Summary Judgement [sic] (Doc. #45)
filed on April 18, 2017, and based on the facts in his Second
Amended Complaint.
3, 2017.

Defendant filed a Response (Doc. #53) on May

Because the Court finds that plaintiff has failed to

state a claim, the request for summary judgment will be denied as
moot.
I.
On July 17, 2015, plaintiff initiated his action with a onepage Complaint (Doc. #1) against defendant First Class Management,
LLC, and Lee County, Florida Judge Tara P. Palack arguing that the
parties acted in collusion to violate 42 U.S.C. § 1983, but

providing no factual support because he “just got back in Fort
Myers”, and would require additional time to “develop his case.”
Plaintiff also sought to proceed in forma pauperis.

(Doc. #2.)

On July 23, 2015, the Clerk filed duplicates of the Complaint as
an Amended complaint (Doc. #4). On July 28, 2015, plaintiff sought
emergency injunctive relief seeking to have the Court enjoin
enforcement of a Writ of Possession issued in the underlying state
court action.

On the same day, the Court denied the motion for

lack of jurisdiction.

(Doc. #8.)

On July 30, 2015, the Magistrate

Judge denied plaintiff’s request to proceed in forma pauperis
without prejudice to filing an amended complaint in compliance
with the directives in the Order.

(Doc. #9.)

On August 31, 2015, plaintiff filed a revised (amended)
Complaint

(Doc.

#11)

setting

forth

a

basis

for

federal

jurisdiction 1, and liberally construed asserting that the only
logical conclusion for his expedited eviction was the collusion
because: (1) documents were missing or removed from the record
showing plaintiff’s excellent history of rent payments; (2) Judge
Paluck knew that defendant was out of town and could not respond
in the expedited case, and he was denied a hearing; and (3)

1

Plaintiff brought the case pursuant to 42 U.S.C. § 1983 and
42 U.S.C. § 1985, applicable to the states through the Fourteenth
Amendment of the United States Constitution.
Plaintiff also
alleged discrimination but failed to identify a protected class.

2

plaintiff tried to comply with Judge Paluck’s order to deposit
$2,500 but depositing by paying $362.00 on his way out of town and
he thought his payment history was sufficient but the landlord
stole the evidence of the payment history from the apartment while
he was locked out.

Plaintiff also filed a renewed Affidavit (Doc.

#13) regarding his indigent status.
On December 31, 2015, the Magistrate Judge issued her Report
and

Recommendations

plaintiff

qualified

(Doc.
to

#15)

proceed

noting
without

that

it

appeared

prepayment

of

that

costs,

however the new complaint remained deficient as to the basis for
jurisdiction and therefore the case should be dismissed with
prejudice.

On February 17, 2016, the Court adopted the Report and

Recommendation in part as to plaintiff’s indigent status, but
recommitted the case to the Magistrate Judge for a frivolity review
under 28 U.S.C. § 1915(e)(2)(B).

(Doc. #19.)

On April 22, 2016,

the Magistrate Judge recommended that the claims against Judge
Paluck be dismissed with prejudice based on her judicial immunity,
and the Magistrate Judge found that plaintiff could not bring his
claim directly under the Fourteenth Amendment because First Class
is not a state actor, but that plaintiff could assert a claim for
a constitutional deprivation under 42 U.S.C. § 1983 and under color
of state law. The Magistrate Judge otherwise recommended dismissal
of any claims under both § 1985 or 42 U.S.C. § 2000e-2 with
prejudice.

(Doc. #21.)

The Recommendations were adopted, and

3

plaintiff was provided the opportunity to file a Second Amended
Complaint against First Class Management LLC only.

(Doc. #24.)

On July 5, 2016, plaintiff filed his Second Amended Complaint (Doc.
#30). 2
Office,

The Court directed service of process by the U.S. Marshal’s
and

defendant

First

Class

Management

LLC

filed

its

appearance by filing a motion to dismiss.
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

2

By Endorsed Order (Doc. #29), plaintiff was granted an
extension of time through July 5, 2016, to file the Second Amended
Complaint.
As plaintiff timely filed the pleading, defendant’s
argument as to untimeliness is rejected.

4

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.
“A district court can generally consider exhibits attached to
a

complaint

in

ruling

on

a

motion

to

dismiss,

and

if

the

allegations of the complaint about a particular exhibit conflict
with the contents of the exhibit itself, the exhibit controls.”
Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016)
(citations omitted).

Documents attached to a motion to dismiss

5

may also be considered “if the attached document is: (1) central
to the plaintiff's claim [incorporated by reference]; and (2)
undisputed.”
2002).

Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.

Undisputed

means

plaintiff

authenticity of the document.

does

not

challenge

the

Id.
III.

Taking all the factual allegations in the Second Amended
Complaint (Doc. #30) as true for purposes of the motion to dismiss,
plaintiff

alleges

a

due

process

violation

against

defendant

pursuant to 42 U.S.C. § 1983 because he was not provided an
eviction hearing after showing that he had been an excellent payer
of rent, but that the documentation was missing from the court
file.

Plaintiff argues that Judge Paluck did not accept his

request for a hearing and instead issued an order directing that
if he failed to deposit $2,100, the eviction would be granted.
Plaintiff alleges that he placed $362.00 in the court’s registry
and some amount was part of his security deposit but that is was
insufficient to grant him a hearing.

Plaintiff’s argument is that

he should have been granted a hearing before being evicted from
his home, and that due process demands that he be provided a
hearing.

Plaintiff alleges that defendant jointly participated

with Judge Paluck in a conspiracy to interfere with his rights.
Plaintiff alleges that Fla. Stat. § 83.60(2) was used to
essentially invalidate his constitutional right to a hearing.

6

Plaintiffs alleges that the goal of the conspiracy was to see him
homeless, possibly because of his race, which is African-American.
Plaintiff further alleges that First Class Management LLC directed
the violation of his due process because Judge Paluck granted the
eviction with no evidence and to put plaintiff out on the street.
IV.
Under Section 1983, any person who under color of state law
subjects a citizen “to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,” is liable.
42 U.S.C. § 1983.

This requires a showing of a state action, or

an act under color of state law attributable to the state that
caused the deprivation of a federal right.
436

U.S.

149,

successfully

156

(1978).

challenged

For

Flagg Bros. v. Brooks,

example,

defendant’s

resort

if
to

plaintiff
the

had

eviction

procedures authorized by a state statute on federal due process
grounds, this would give rise to a cause of action under § 1983.
Lugar v. Edmondson Oil Co., 457 U.S. 922, 934 (1982).

The “under-

color-of-state-law element of § 1983 excludes from its reach merely
private conduct, no matter how discriminatory or wrongful.”

7

Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citations
omitted).
State Action
Private actors may become state actors only under three
theories: “state compulsion,” “public function,” and “nexus.” 3
Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982).

The

compulsion theory applies when the state commands or compels a
certain act and reserves power to determine the result becoming
responsible for the private action.
398 U.S. 144, 171 (1970).
is insufficient.

Adickes v. S. H. Kress & Co.,

Mere acquiescence in the private action

Flagg Bros, 436 U.S. at 164.

The public function

theory requires that the private actor exercise powers exclusive
to the State. For example, owners of facilities built to primarily
benefit the public, i.e. serving a public function, would be
subject to state regulation.
501, 507 (1946).

Marsh v. State of Ala., 326 U.S.

The nexus theory requires the existence of a

sufficiently close relationship or “nexus” between the State and
the private actor so that the action of the private actor “may be
fairly treated as that of the State itself.”

Harris v. McDonald's

Corp., 901 F. Supp. 1552, 1557 (M.D. Fla. 1995) (citing Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).

3

Misuse of

An additional test is available only in cases of prejudgment
attachments under a joint action test.
Lugar, 457 U.S. at 939
(citing Flagg Bros., 436 U.S. at 157).

8

power, possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law,
is action taken ‘under color of’ state law.”

United States v.

Classic, 313 U.S. 299, 326 (1941).
The Court finds that the mere availability of expedited relief
to a private actor under state law is insufficient to establish
state action, or action under color of law under any of the
theories outlines above.

The state did not mandate or compel the

default judgment without a hearing, rather it is the statute that
provides such relief to a landlord against a tenant.

Further, the

collecting of rent or the process of eviction is not a typical or
exclusion public function.

Lastly, there is no allegation of any

special relationship between defendant and the state court any
more or less than any litigant who may appear in court.
Florida Statute
Even if plaintiff could establish that defendant was acting
under color of state law, the Court finds that plaintiff cannot
show a deprivation of due process attributable to the state.
Defendant’s action for eviction was brought pursuant to Florida
Statute 83.60(2), which provides:
In an action by the landlord for possession of
a dwelling unit, if the tenant interposes any
defense other than payment, including, but not
limited to, the defense of a defective 3-day
notice, the tenant shall pay into the registry
of the court the accrued rent as alleged in
the complaint or as determined by the court

9

and the rent that accrues during the pendency
of the proceeding, when due. The clerk shall
notify the tenant of such requirement in the
summons. Failure of the tenant to pay the rent
into the registry of the court or to file a
motion to determine the amount of rent to be
paid into the registry within 5 days,
excluding
Saturdays,
Sundays,
and
legal
holidays, after the date of service of process
constitutes an absolute waiver of the tenant's
defenses other than payment, and the landlord
is entitled to an immediate default judgment
for removal of the tenant with a writ of
possession to issue without further notice or
hearing thereon.
Fla. Stat. § 83.60(2) (emphasis added). In other words, to contest
the eviction, plaintiff must first deposit all of the accrued rent,
and rent that would continue to accrue into the registry.
Attached and incorporated into the Second Amended Complaint
is plaintiff’s Rebutal-Answer to Complaint filed in the eviction
proceeding.

Therein, plaintiff outlines how he was willing to pay

his rent but required additional time due to his fixed income, so
he made partial payments towards the $1,450 that was owed at the
time, but that the partial payments to defendant were refused.
(Doc. #30, Exh. A2.)

Also attached is a letter from the court

addressed to plaintiff indicating that he must deposit $2,100.00
in the registry by July 2, 2015, and the rent must be kept current
as it becomes due.

The letter went on to state that “[i]f you

fail to deposit $2,100.00, the Default – Residential Eviction and
Final Judgment – Eviction will be granted when it is submitted by
the Plaintiff.”

(Id., Exh. A10.)

10

Plaintiff does not allege that

he was denied a hearing after depositing the full $2,100.00, or
that he did in fact deposit this amount.
Attached to the motion to dismiss is a copy of the Complaint
filed in state court, and the allegations coincide with those of
plaintiff that the total rent due was $1,400.

Defendant demanded

summary procedures under Florida law in the Complaint.
2, Exh. 1.)

(Doc. #40-

Plaintiff was served with a Three Day Notice to Pay

Rent or Deliver Possession prior to the filing of the complaint
warning that eviction proceedings would be commenced if the entire
amount of $1,400 was not paid.

(Id., Exh. B to Exh. 1.)

Also

attached is the Motion for Default and Default Judgment based on
plaintiff’s failure to deposit the rent in the amount alleged, or
in the amount required by the state court.
The
plaintiff

plain
were

text
to

of

the

dispute

statute
the

requires

adequacy

of

deposit
the

even

3-day

if

notice

requirement, Stanley v. Quest Int'l Inv., Inc., 50 So. 3d 672, 673
(Fla. 4th DCA 2010); even if plaintiff had good cause for failing
to make a timely deposit, Park Adult Residential Facility, Inc. v.
Dan Designs, Inc., 36 So. 3d 811, 813 (Fla. 3d DCA 2010); and even
if a counterclaim or defense of fraud is presented, First Hanover
v. Vazquez, 848 So. 2d 1188, 1190 (Fla. 3d DCA 2003).

This

requirement to deposit rent for continuing occupancy under Fla.
Stat. § 83.60(2) has been found to be constitutional.

11

Karsteter

v. Graham Co., 521 So. 2d 298, 298 (Fla. 3d DCA 1988) (collecting
cases).
Plaintiff does not allege that he filed a motion to determine
rent, or that he paid, or that the amount of rent owed was disputed.
The statutory authority clearly provides that all defenses are
deemed waived except for payment for the failure to deposit all
the funds into the registry.

The fact that plaintiff consistently

paid his rent in the past bears no relevance on his failure to
deposit

the

statutorily

required

amount

to

avoid

a

default

judgment.
Due Process
Due

process

requires

available defense.

an

opportunity

to

present

every

Lindsey v. Normet, 405 U.S. 56, 66 (1972).

The Florida Statute at issue also specifically provides procedures
to present defenses:
In an action by the landlord for possession of
a dwelling unit based upon nonpayment of rent
or in an action by the landlord under s. 83.55
seeking to recover unpaid rent, the tenant may
defend
upon
the
ground
of
a
material
noncompliance with s. 83.51(1), or may raise
any other defense, whether legal or equitable,
that he or she may have, including the defense
of retaliatory conduct in accordance with s.
83.64.
Fla. Stat. § 83.60(1)(a).

If plaintiff had deposited the $2,100,

a hearing would have taken place:

“[t]he court, after preliminary

hearing, may award all or any portion of the funds on deposit to

12

the landlord or may proceed immediately to a final resolution of
the cause.”

Fla. Stat. § 83.61.

The fact that plaintiff did not

use the procedures in place by failing to pay the overdue rent,
does not mean that plaintiff was denied due process.

See, e.g.,

Lindsey v. Normet, 405 U.S. 56, 65 (1972) (“A requirement that the
tenant

pay

or

provide

for

the

payment

of

rent

during

the

continuance of the action is hardly irrational or oppressive.”).
Florida law provides that plaintiff is entitled to present a
defense if he deposits rent into the registry, and therefore
plaintiff was provided all the process that he was due.

Colvin v.

Hous. Auth. of City of Sarasota, Fla., 71 F.3d 864, 866 & n.3 (11th
Cir. 1996).
Because the Court finds that plaintiff has failed to state a
claim, the case will be dismissed and judgment entered in favor of
defendant.
Accordingly, it is now
ORDERED:
1. Defendant’s Motion to Dismiss Plaintiff's Second Amended
Complaint (Doc. #40) is GRANTED and the defendant is
dismissed with prejudice.
2. Plaintiff’s Motion for Summary Judgement [sic] (Doc.
#45) is DENIED as moot.

13

3. The Clerk shall enter judgment in favor of defendant and
against plaintiff, terminate all pending motions and
deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
August, 2017.

Copies:
Plaintiff
Counsel of record

14

4th

day of