Clements v. The State of Florida et al
Filing
40
OPINION AND ORDER granting 33 combined motion to dismiss and the complaint is dismissed for lack of jurisdiction. The Clerk shall enter judgment accordingly, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 12/12/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LOUIS MATTHEW CLEMENTS,
Plaintiff,
v.
Case No: 2:16-cv-100-FtM-29MRM
THE STATE OF FLORIDA,
Defendant.
LOUIS MATTHEW CLEMENTS,
Plaintiff,
v.
Case No: 2:16-cv-101-FtM-99MRM
THE STATE OF FLORIDA,
Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant’s Combined
Motion to Dismiss (Doc. #33) filed on August 22, 2016, in Case No.
2:16-cv-100-FTM-29MRM
and
in
Case
No.
2:16-cv-101-FTM-99MRM. 1
Plaintiff filed a Response (Doc. #35) on August 26, 2016, in both
cases.
Standard of Review
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
1
Although plaintiff filed two separate cases, a single motion
was filed for the related cases.
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
accusation.”
(citations
dismiss,
unadorned,
Ashcroft
omitted).
the
Court
v.
In
must
This requires
the-defendant-unlawfully-harmed-me
Iqbal,
deciding
556
accept
all
a
U.S.
Rule
662,
12(b)(6)
factual
678
(2009)
motion
allegations
in
to
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).
First Case (2:16-cv-100)
In the Statement of Claim (Doc. #13-1) attached to the Second
Amended Complaint (Doc. #13), plaintiff Louis M. Clements asserts
that he was arrested on May 23, 2007, by the Lee County Sheriff’s
Office.
Plaintiff alleges that he was taken to the Major Crimes
Special Victims Unit and “read his rights”.
Plaintiff alleges
that he requested an attorney but was refused counsel and coerced
- 2 -
into making a statement.
Plaintiff states that the incident was
properly reported and the statement was later supressed, however
an “excessive bond amount of $250,000” was set despite his lack of
prior criminal history and his later establishing no risk of flight
or danger to the community.
On June 2, 2008, plaintiff arrived for sentencing and refused
a plea deal in favor of trial.
Plaintiff alleges his counsel was
not prepared for trial, so it was rescheduled for June 4, 2008,
and the plea offer was taken off the table.
Two days later, on
June 4, 2008, plaintiff alleges that he was coerced into accepting
the previously offered plea and counsel was not ready for trial.
On July 4, 2008, plaintiff tried to withdraw the plea, and on
February 17, 2009, plaintiff filed a motion that was accepted for
filing.
On April 13, 2009, a hearing was scheduled but plaintiff
alleges that his public defender failed to present available
witnesses.
On May 6, 2009, plaintiff appealed based on the
ineffectiveness of the public defender, and on October 14, 2009,
plaintiff was counseled by a different public defender on appeal
to drop the appeal and instead file a 3.850 as to his original
attorney with regard to the coercion into the plea agreement.
Plaintiff alleges that a third public defender, who was
representing him on the 3.850, told him that plaintiff’s “star
witness”
public
defender
Karen
Miller
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(yet
a
fourth
public
defender) would not testify and throw another attorney under the
bus.
On April 19, 2010, at the evidentiary hearing on the 3.850
motion, the public defender refused to call any witnesses and his
original
attorney
proved
uncooperative.
The
public
defender
failed to tell plaintiff the outcome of the hearing, and he assumed
he had lost so he contacted the public defender to file an appeal
on his behalf.
On April 28, 2010, plaintiff received the Order
denying his 3.850 motion and discharging the Public Defender’s
Office from further responsibility in the case, including filing
appeals.
Plaintiff
sought
advice
from
private
counsel,
who
told
plaintiff that the Public Defender’s Office was still bound to
file the Notice of Appeal on his behalf.
plaintiff called the public defender.
So, on May 13, 2010,
Not until November 29,
2012, realizing that no appeal had been filed, plaintiff filed a
motion for a belated appeal.
On January 24, 2013, the Second
District Court of Appeals denied the request on the basis of an
affidavit
by
the
public
defender’s
office
swearing
that
she
received no phone call about filing an appeal.
Plaintiff alleges that he had email communications with the
Clerk
of
the
Second
District
Court
of
Appeals
regarding
the
admitted mishandling of his case and he was instructed to try and
reinstate his appeal.
Plaintiff filed a motion, and the Second
- 4 -
District Court of Appeals denied it as untimely after filing it in
error with a new appeal number.
On October 15, 2014, the Second District Court of Appeals
reinstated his appeal and it was remanded to the Twentieth Judicial
Circuit Court for an evidentiary to determine if plaintiff had in
fact asked counsel to file an appeal on his behalf.
On the date
of the hearing, on November 26, 2014, plaintiff discovered that
the presiding judge in Collier County would be moving to a position
in Lee County, which he alleges is a conflict of interest that
“sheds doubt on the due process” of the circuit court.
The
assigned judge did not recuse and issued an opinion recommending
that the belated appeal be denied as the assigned judge “felt
[plaintiff] was not being honest in his testimony”.
Plaintiff
appealed to the Florida Supreme Court, which was denied without
review.
Plaintiff asserts that the cumulative alleged violations of
his constitutional rights, and his allegedly wrongful conviction,
should be compensated in excess of $800,000 under Florida Statute
961.06 and 42 U.S.C. § 1983, and that he be granted injunctive
relief. 2
(Doc. #13, p. 5.)
2
On July 20, 2016, the Court denied plaintiff’s request for
a temporary restraining order, and further denied plaintiff’s
motion for a preliminary injunction for failure to demonstrate
service of process. (Doc. #29.)
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Second Case (2:16-cv-101)
In the Second Amended Complaint (Doc. #13), through the
attached Statement of Claim (Doc. #13-1), plaintiff Louis M.
Clements alleges some of the same facts stemming from the June 4,
2008 conviction described in the first case.
alleges
that
he
was
sentenced
electronic monitoring.
to
5
years
Plaintiff further
of
probation
with
During this 5 year period, plaintiff
alleges that he was arrested for multiple violations for removing
his monitoring bracelet for 3-15 minutes each time, and once for
over one and a half hours that was plaintiff’s mistake when he
travelled
for
work,
but
that
violations of his probation.
none
of
these
instances
were
Plaintiff alleges that his bracelet
lost connection between the two pieces that make up the monitoring
device, but it was not actually removed, he was never found to
have absconded, and he did not do anything illegal.
Plaintiff
asserts that the equipment was faulty and that each judge who
signed a warrant or presided over a violation hearing, every
prosecuting attorney, and every arresting officer is liable for
malicious
prosecution
and
wrongful
arrest.
Plaintiff’s
allegations are generally brought under 42 U.S.C. § 1983.
Motion to Dismiss
Defendant argues that plaintiff’s suits are both barred by
the State’s Eleventh Amendment immunity, and that the State of
- 6 -
Florida has not waived that immunity, and its immunity has not
been expressly waived by the United States Congress.
The Eleventh Amendment to the United States Constitution
provides that “[t]he Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.”
U.S.
Const. amend. XI. Courts have consistently extend application of
the
Eleventh
Amendment
to
the
states,
and
found
that
“an
unconsenting State is immune from suits brought in federal courts
by her own citizens as well as by citizens of another State.”
Edelman v. Jordan, 415 U.S. 651, 663 (1974).
Therefore, the motion
is due to be granted, unless immunity from suit has been waived
under the circumstances of this case.
There are essentially two ways that immunity may be waived.
A
state
may
waive
its
immunity,
expressly,
through
state
legislative action, or the United States Congress can abrogate the
state’s immunity pursuant to Section 5 of the Fourteenth Amendment.
Carr v. City of Florence, Ala., 916 F.2d 1521, 1524–25 (11th Cir.
1990).
“Congress has not abrogated Eleventh Amendment immunity
in § 1983 cases.”
Doe v. Univ. of Ala. in Huntsville, 177 F.
Supp. 3d 1380, 1387 (N.D. Ala. 2016) (citing Quern v. Jordan, 440
U.S. 332, 338 (1979)).
So the only issue that remains is whether
the State of Florida has taken action to waive its immunity.
- 7 -
The State of Florida has waived its immunity for certain tort
actions, but this does not “constitute consent to suit in federal
court under § 1983.”
Gamble v. Florida Dep't of Health & Rehab.
Servs., 779 F.2d 1509, 1515 (11th Cir. 1986) (discussing Fla. Stat.
§ 768.28); Cate v. Oldham, 707 F.2d 1176, 1183 n.4 (11th Cir.
1983).
“It is clear that Congress did not intend to abrogate a
state's eleventh amendment immunity in section 1983 damage suits.”
Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986).
Absent
a waiver, the Eleventh Amendment bars plaintiff’s § 1983 claims,
and therefore the Court lacks jurisdiction over the case.
779 F.2d at 1520.
Gamble,
The motion to dismiss will be granted.
Leave to Amend
The Court finds that no amendment to the complaint would
overcome the Eleventh Amendment bar in either the first or second
cases because plaintiff is seeking damages from the State’s coffers
no matter who is named as an alternative defendant. 3
Gamble v.
Florida Dep't of Health & Rehab. Servs., 779 F.2d 1509, 1513 (11th
Cir. 1986) (If the damage award is “obviously sought from the state
treasury”, the “suit will be deemed to be one against the officer
in an official capacity, and the Eleventh Amendment will therefore
3
Plaintiff proffers that the “original laundry list of
Defendants” could be added back in through a third amended claim
if necessary. (Doc. #35, II.B.)
- 8 -
preclude such relief.” (citing Edelman v. Jordan, 415 U.S. 651,
664-665 (1974)).
Additionally,
plaintiff
seeks
damages
for
his
wrongful
conviction and for the continuing requirements under his term of
probation, but has not alleged that his conviction was overturned
or invalidated.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (“A
claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
§ 1983.”).
Accordingly, it is hereby
ORDERED:
Defendant’s Combined Motion to Dismiss (Doc. #33) is GRANTED
and the Complaints in Case No. 2:16-cv-100-FTM-29MRM and in Case
No. 2:16-cv-101-FTM-99MRM are dismissed for lack of jurisdiction.
The Clerk shall enter separate judgments in each of the two case
dismissing the Complaints for lack of jurisdiction.
The Clerk is
further directed to terminate all deadlines and motions, and to
close the both files.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2016.
Copies:
Parties of Record
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12th
day
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