Kidwell v. Florida Commission on Human Relations et al
Filing
44
ORDER denying as moot 8 Plaintiff's Motion for Court Ordered Service of Summons and Complaint on the Defendant, SeaWorld Entertainment, and Motion to Show Cause; denying without prejudice 15 Plaintiff's Verified Motion to Proceed In Forma Pauperis and Request for Issue Preclusion as to Poverty, with Sworn Declaration; denying as moot 19 Plaintiff's Motion for Emergency Hearing on Plaintiff's Pending Motions for Court Ordered Service on SeaWorld, Plaintiff's Mot ion for SeaWorld to Show Cause, and for an "Adkins" Hearing to Grant Plaintiff Leave to Proceed In Forma Pauperis, and Enforce Rule 4; denying as moot 22 Plaintiff's Motion to Reconsider this Court's Order of August 3, 2016 for Abuse of Discretion, or in the Alternative Clarify Order. Signed by Magistrate Judge Carol Mirando on 1/17/2017. (HJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BILLY RAY KIDWELL,
Plaintiff,
v.
Case No: 2:16-cv-403-FtM-99CM
FLORIDA COMMISSION ON
HUMAN RELATIONS and
SEAWORLD ENTERTAINMENT,
INC.,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion for Court
Ordered Service of Summons and Complaint on the Defendant, SeaWorld
Entertainment, and Motion to Show Cause (Doc. 8); Plaintiff’s Verified Motion to
Proceed In Forma Pauperis and Request for Issue Preclusion as to Poverty, with
Sworn Declaration (Doc. 15); Plaintiff’s Motion for Emergency Hearing on Plaintiff’s
Pending Motions for Court Ordered Service on SeaWorld, Plaintiff’s Motion for
SeaWorld to Show Cause, and for an “Adkins” Hearing to Grant Plaintiff Leave to
Proceed In Forma Pauperis, and Enforce Rule 4 (Doc. 19); and Plaintiff’s Motion to
Reconsider this Court’s Order of August 3, 2016 for Abuse of Discretion, or in the
Alternative Clarify Order (Doc. 22).
I.
Background
On May 25, 2016, Plaintiff filed a Complaint (the “Complaint”) against the
Florida
Commission
on
Human
Relations
(the
“FCHR”)
and
SeaWorld
Entertainment, Inc. (“SeaWorld”) (collectively “Defendants”).
Doc. 1.
alleges that he is a disabled veteran and lives in Florida. Id. ¶ 80.
Plaintiff
According to the
Complaint, Plaintiff and his family visited Busch Gardens, a large amusement park
in Tampa, on June 28, 2014.
Id. ¶ 164. Plaintiff’s claim of discrimination against
SeaWorld stems from three accounts: either SeaWorld’s or Busch Gardens’ 1 (1)
pricing policy, (2) lack of accommodations on its online website, and (3) prohibition of
service dogs and unavailability of an electrical wheelchair into Busch Gardens.
First, Plaintiff argues that Busch Gardens required Plaintiff to pay a fullpriced ticket for entry although Plaintiff could enjoy only two rides because of his
disability.
Id. ¶¶ 133-34, 139. Plaintiff also asserts that Busch Gardens charged
$50 for a one-day rental of an electrical wheelchair.
Id. ¶ 146. Second, Plaintiff
alleges that Busch Gardens did not allow Plaintiff’s two service dogs into Busch
Gardens and provide an electrical wheelchair to Plaintiff although Plaintiff called
and sent an email to Busch Gardens.
Id. ¶¶ 166-69, 196.
Plaintiff claims that
because he did not have an electrical wheelchair and service dogs, he could not enjoy
rides and became ill while waiting for other family members in Busch Gardens.
¶¶ 203-09.
Id.
Lastly, Plaintiff asserts that Busch Gardens’ online ticket website was
complex to navigate and did not provide accommodations for Plaintiff’s disability.
Although the Complaint seems to hold SeaWorld responsible for Busch Gardens’
actions, the Complaint does not show how the two entities, Busch Gardens and SeaWorld,
are related. Doc. 1 ¶¶ 26-27. Rather, the Complaint seems to mix the roles of SeaWorld
and Busch Gardens in the incident described above. Id. ¶¶ 8-51.
1
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Id. ¶¶ 180, 182-83. As a result, Plaintiff alleges that SeaWorld violated Title III of
the Americans with Disabilities Act (“ADA”).
With regard to the FCHR, Plaintiff argues that the FCHR did not provide an
impartial complaint process when Plaintiff attempted to bring a claim against
SeaWorld before the FCHR.
Id. ¶¶ 204, 238, 241-48.
Plaintiff alleges that the
FCHR violated Title II of the ADA and the Florida Civil Rights Act (“FCRA”) 2 by
determining Plaintiff’s complaint regarding the above incidents insufficient and not
providing accommodations for filing of his complaint.
Id. ¶¶ 254-57, 267, 274.
Plaintiff also claims that the FCHR’s regulations regarding service animals do not
comply with Title II. Id. ¶¶ 260-61.
Based on the above allegations, Plaintiff seeks that the Court order (1)
SeaWorld to make its online website and its amusement parks accessible to the
disabled, (2) Defendants to comply with the federal regulations regarding service
animals, (3) the FCHR not to enact its own regulations and to comply with Title II of
the ADA, and (4) Defendants to pay monetary damages to Plaintiff.
Id. at 64-67 ¶¶
1-20.
II.
Plaintiff’s Motion to Proceed In Forma Pauperis (Doc. 15)
a. Indigency
Plaintiff requests leave to proceed without prepayment of the filing fees and
costs pursuant to 28 U.S.C. § 1915. In accordance with 28 U.S.C. § 1915, the Court
Because a claim under the FCRA is analyzed under the same framework as the
ADA, the Court will not analyze separately Plaintiff’s FCRA claims. Chanda v.
Engelhard/ICC, 234 F.3d 1219, 1221 (11th Cir. 2000).
2
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must first determine that Plaintiff meets the requirements of indigency and then
conduct a sufficiency review of the Complaint (Doc. 1).
An individual may be allowed to proceed in forma pauperis if he declares in an
affidavit that he “is unable to pay such fees or give security therefor.”
1915(a)(1).
28 U.S.C. §
When considering a motion filed pursuant to 28 U.S.C. § 1915(a), “[t]he
only determination to be made by the court . . . is whether the statements in the
affidavit satisfy the requirement of poverty.”
F.3d 1305, 1307 (11th Cir. 2004).
Martinez v. Kristi Kleaners, Inc., 364
A person need not be “absolutely destitute” or
reduce himself to a public charge in order to proceed in forma pauperis; rather “an
affidavit will be held sufficient if it represents that the litigant, because of [his]
poverty, is unable to pay for the court fees and costs, and to support and provide
necessities for [himself] and [his] dependents.”
Martinez, 364 F.3d at 1307.
Here, Plaintiff’s Affidavit shows that he is qualified to proceed without
prepayment of costs in this matter.
Plaintiff is a disabled veteran who supports his
family with his disability income from the Department of Veterans Affairs and social
security income.
Doc. 15-1 ¶ 5.
He also states that he has debts from paying
medical bills of his wife and daughter who recently had a car accident.
Id. ¶¶ 12, 14.
In addition, Plaintiff is not employed and has no investments to derive income from.
Id. ¶ 28.
b. Sufficiency of the Complaint
Even assuming Plaintiff meets the financial criteria to proceed in forma
pauperis, the Court must proceed to determine the sufficiency of Plaintiff’s claims.
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Under Section 1915 of Title 28 of the United States Code, the Court shall dismiss an
action if the action is deemed frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
With respect to whether a complaint “fails to state a claim on which relief may
be granted,” section 1915(e)(2)(B)(ii) mirrors the language of Federal Rule of Civil
Procedure 12(b)(6), so courts apply the same standard in both contexts.
Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Labels and conclusions”
or “a formulaic recitation of the elements of a cause of action” that amount to “naked
assertions” will not do.
Ashcroft, 556 U.S. at 678 (quotations and citation omitted).
Instead, a complaint must “contain either direct or inferential allegations respecting
all the material elements necessary to sustain a recovery under some viable legal
theory.”
Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683-84 (11th Cir.
2001) (internal quotation and citation omitted).
Rule 8(a) requires that a pleading set forth a claim of relief and contain a short
and plain statement in which the pleader is entitled to relief.
Fed. R. Civ. P. 8(a).
This requirement ensures that the defendant is given fair notice of what the claim is
and the grounds upon which it rests.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
561-63 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
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“[T]he
pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”
Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
allegations in the complaint also may not be conclusory.
The
Twombly, 550 U.S. at 555;
Id. Federal Rule 10(b) requires that:
[a] party must state its claims or defenses in numbered paragraphs,
each limited as far as practicable to a single set of circumstances. A
later pleading may refer by number to a paragraph in an earlier
pleading. If doing so would promote clarity, each claim founded on a
separate transaction or occurrence– and each defense other than a
denial– must be stated in and separate count or defense.
Fed. R. Civ. P. 10(b).
While the Court holds pro se complaints to a less stringent standard than
pleadings drafted by attorneys, Ortiz v. Degrees, No. 210-cv-278-FtM-29SPC, 2010
WL 2889773, at *1 (M.D. Fla. June 28, 2010), a pro se litigant still is bound to follow
the pleading requirements set forth in the Federal Rules of Civil Procedure.
Goldsmith v. City of Atmore, 996 F.2d 1155, 1161 (11th Cir. 1993).
See
“Where
allegations are vague and ambiguous, leaving the reader to guess at precisely what
the plaintiff was claiming, the judge should require the plaintiff to replead his
claims.”
McFarlin v. Douglas Cty., 587 F. App’x 593, 595 (11th Cir. 2014) (citations
omitted).
a) Plaintiff’s Standing
Article III of the United States Constitution limits the Court’s jurisdiction to
cases or controversies, Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013),
and requires that there be a case or controversy at all stages of the litigation.
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Chafin
v. Chafin, 133 S. Ct. 1017, 1023 (2013). “A plaintiff must demonstrate three things
to establish standing under Article III.”
Shotz v. Cates, 256 F.3d 1077, 1081 (11th
Cir. 2001). The plaintiff must demonstrate that (1) “he suffered an ‘injury-in-fact,”
(2) a causal connection exists “between the asserted injury-in-fact and the challenged
action of the defendant,” and (3) “the injury will be redressed by a favorable decision.”
Id. (internal quotation marks omitted).
“Standing is limited to claims for which the plaintiff is ‘among the injured.’”
Access Now, Inc. v. S. Fla. Stadium Corp, 161 F. Supp. 2d 1357, 1364 (S.D. Fla. 2001).
Accordingly, Plaintiff lacks standing to bring claims or make allegations on behalf of
all disabled veterans in Florida.
These allegations include, for example, “Florida is
a horrendous state for America’s Disabled Combat Veterans to live in,” and “Plaintiff,
and America’s Disabled Veterans, with unique, or severe P.T.S.D. are wrongfully
excluded from the Busch Gardens Accessibility Guide.”
Doc. 1 ¶¶ 1-5, 222-23.
With regard to the FCHR, it is not clear what “injury-in-fact” that Plaintiff
suffered because he was not denied access to or benefit of the FCHR’s complaint
process.
In fact, the Complaint demonstrates that he was able to submit a complaint
to the FCHR, which the agency considered and determined insufficient.
Id. ¶¶ 241,
253, 266, 274. Furthermore, Plaintiff does not allege at all what injury the FCHR’s
regulation regarding service animals caused to Plaintiff and how the FCHR caused
that injury.
Id. ¶¶ 260-61.
In addition, “a party has standing to seek injunctive relief only if the party
alleges . . . a real and immediate-as opposed to a merely conjectural or hypothetical-
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threat of future injury.”
Id. In an ADA case, the plaintiff “lacks standing to seek
injunctive relief unless he alleges facts giving rise to an inference that he will suffer
future immediate discrimination by the defendant.”
Id. In analyzing the likelihood
that the plaintiff will suffer a future injury, the court examines the following factors:
“(1) the proximity of the place of public accommodation to plaintiff’s residence, (2)
past patronage of defendant’s business, (3) the definitiveness of plaintiff’s plan to
return, and (4) the plaintiff’s frequency of travel near the defendant.”
Hoewishcer
v. Cedar Bend Club, Inc., 877 F. Supp. 2d 1212, 1223 (M.D. Fla. 2012). The plaintiff
“either must have attempted to return to the non-compliant building or at least
intend to do so in the future.”
Houston v. Marod Supermarkets, Inc., 733 F.3d 1323,
1326 (11th Cir. 2013).
Here, Plaintiff’s likelihood of suffering a future injury is conjectural.
With
regard to either Busch Gardens or SeaWorld, Plaintiff alleges that he lives hundreds
miles away from Busch Gardens.
Rosenkrantz v. Markopoulos, 254 F. Supp. 2d
1250, 1253 (M.D. Fla. 2003) (holding that the plaintiff demonstrated a speculative or
conjectural future injury because the plaintiff lived hundreds of miles away and had
been to the establishment only once); Doc. 1 ¶ 165.
According to the Complaint, he
visited Busch Gardens only twice in the past, on June 28, 2014 and August 16, 2014.
Doc. 1 ¶¶ 190, 215; see Rosenkrantz, 254 F. Supp. 2d at 1253; Hoewishcer, 877 F.
Supp. 2d at 1223.
Plaintiff does not allege at all that he intends to return to Busch
Gardens “at a specific point in time in the near future.”
2d at 1223.
Hoewischer, 877 F. Supp.
Given the distance between Plaintiff’s residence and Busch Gardens,
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Plaintiff’s lack of expressed desire to return, and the infrequency of his trips to Busch
Gardens, the Court finds that Plaintiff’s future injury from Busch Gardens’ alleged
discrimination is speculative.
Cf. Houston, 733 F.3d at 1326 (finding that the threat
of future injury was real and immediate because the plaintiff had been to the noncompliant building in the past, wanted to return to the building, and frequently
travelled directly past the building).
Similarly, Plaintiff’s future injury from the FCHR’s challenged practice is not
real or immediate. The Complaint contains only one past incident of the FCHR’s
alleged discrimination.
Doc. 1 ¶¶ 241, 253, 266, 274; see Shotz, 256 F.3d at 1082.
Plaintiff also does not allege at all if he attempted to return or intends to do so in the
future.
See Shotz, 256 F.3d at 1082. “Absent such an allegation, the likelihood of
future discrimination remains ‘conjectural, hypothetical, or contingent,’ and not ‘real
and immediate.’”
Id.; see Grimes v. Florida, No. 6:14-cv-244-Orl-28KRS, 2014 WL
1331045, at *5 (M.D. Fla. Apr. 1, 2014) (finding the plaintiff, who alleged a state trial
court’s refusal of her disability accommodation requests during litigation of personal
injury suit, lacked standing for injunctive relief because she did not allege that she
was currently involved in litigation or that she intended or was likely to be involved
in litigation).
b) Plaintiff’s Claim against SeaWorld under Title III of the ADA
Only injunctive relief is available to individual plaintiffs under Title III;
monetary damages are not.
Holloman v. Burger King Rest., No. 3:13-cv-1138-J-
39PDB, 2014 WL 1328922, at* 3 (M.D. Fla. 2014) (citing Jairath v. Dyer, 154 F.3d
-9-
1280, 1283 n.7 (11th Cir. 1998)).
Here, because the Court finds that Plaintiff lacks
standing to bring injunctive relief, Plaintiff cannot seek a viable remedy against
SeaWorld under Title III.
See id.
Even assuming Plaintiff has standing, Plaintiff fails to state a claim under
Rule 12(b)(6).
Under Title III of the ADA, the plaintiff must allege that (1) he is
disabled (within the meaning of the ADA), (2) the defendant is a place of public
accommodation, (3) the defendant denied him full and equal enjoyment of its goods,
services, facilities, or privileges, and (4) the denial was based on the plaintiff’s
disability.
Holloman, 2014 WL 1328922, at* 1 (citing Schiavo ex rel Schindler v.
Schiavo, 403 F.3d 1289, 1299 (11th Cir. 2005)); see also Davis v. Ma, 848 F. Supp. 2d
1105 (C.D. Cal. 2012) (where a customer was denied service in a restaurant due to
having his service dog).
Discrimination under Title III includes “failing to take steps
to ensure that no individual with a disability is excluded by the absence of auxiliary
aids and services.”
Johnson v. Yashoda Hosp., Inc., No. 2:15-cv-611-FtM-99CM,
2016 WL 6681023, at *2 (M.D. Fla. Nov. 14, 2016).
Here, Plaintiff claims that he is disabled under the meaning of the ADA.
Plaintiff, however, does not make clear which of the two entities, SeaWorld or Busch
Gardens, allegedly denied him full and equal enjoyment of its goods, services,
facilities, or privileges.
Doc. 1.
Although the Complaint names SeaWorld and
Busch Gardens interchangeably, the incidents that gave rise to the Complaint seem
to involve Busch Gardens only.
Nonetheless, Plaintiff chose SeaWorld over Busch
Gardens as a named defendant without sufficiently showing SeaWorld’s relation to
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Busch Gardens.
Regardless, Plaintiff may not claim a violation of Title III based on an internet
website’s accessibility.
Neither Busch Gardens’ nor SeaWorld’s online website is a
physical or public accommodation under the ADA.
Access Now, Inc. v. Sw. Airlines,
Co., 227 F. Supp. 2d 1312, 1321 (S.D. Fla. 2002). “[T]he internet is a unique medium
– known to its users as ‘cyberspace’ – located in no particular geographical location
but available to anyone, anywhere in the world, with access to the internet.”
(internal quotation marks omitted).
See id.
Hence, Plaintiff is unable to demonstrate that
either Busch Gardens’ or SeaWorld’s online website prevents his access to “a specific,
physical, concrete space such as a particular airline ticket counter or travel agency.”
See id. As a result, Plaintiff may not plead a claim based on accessibility of an online
website under Title III of the ADA.
See id.
Plaintiff’s claim based on either Busch Gardens’ or SeaWorld’s pricing policy
also is insufficient under Title III.
Plaintiff alleges that the policy of selling tickets
to him at an equal price as his able-bodied counterparts and of charging $50 for
renting electrical wheelchairs is discrimination under Title III of the ADA.
¶¶ 149-50.
Doc. 1
The ADA does not mandate either Busch Gardens or SeaWorld to
provide a ticket to Plaintiff due to his disabled status, but rather an opportunity to
obtain a ticket.
2002).
Louie v. Nat’l Football League, 185 F. Supp. 2d 1306, 1309 (S.D. Fla.
In other words, the ADA “does not require a facility to afford a disabled guest
a greater opportunity to purchase [tickets] than his able-bodied counterpart.”
Access Now, 161 F. Supp. 2d at 1367. Similarly, Title III “does not require a public
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accommodation to provide its customers, clients, or participants with personal
devices, such as wheelchairs.’”
28 C.F.R. § 36.306.
Hence, Plaintiff’s claim based
on either Busch Gardens’ or SeaWorld’s pricing policy is without merit.
See id.
c) Plaintiff’s Claim against the FCHR under Title II of the ADA
With regard to the FCHR, “[t]o establish a claim of disability under Title II of
the ADA, [a plaintiff] must establish that (1) he [] is a qualified individual with a
disability; (2) was denied the full and equal benefit of services, programs, or activities;
(3) and that the denial was by a public entity.”
Schwartz v. The Vills. Charter Sch.,
Inc., 165 F. Supp. 3d 1153, 1173 (M.D. Fla. 2016). Under Title II, “a public entity”
includes “any department, agency, special purpose district, or other instrumentality
of a State or States or local government.” Id.; 42 U.S.C. § 12131.
“In cases alleging reasonable accommodation, the defendant’s duty to provide
a reasonable accommodation is not triggered until the plaintiff makes a ‘specific
demand’ for an accommodation.”
Fla. 2010).
Smith v. Rainey, 747 F. Supp. 2d 1327, 1338 (M.D.
“[F]or a demand to be specific enough to trigger the duty to provide a
reasonable accommodation, the defendant must have enough information to know of
both the disability and desire for an accommodation, or circumstances must at least
be sufficient to cause a reasonable [entity] to make appropriate inquiries about the
possible need for an accommodation.”
Barron v. Sch. Bd. of Hillsborough Cty., 3 F.
Supp. 3d 1323, 1330 (M.D. Fla. 2014).
Here, the Complaint does not show that Plaintiff made a demand specific
enough to inform his disability or sufficient circumstances to the FCHR.
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See id.
Plaintiff asserts that he requested “Low Stress Access” as a reasonable
accommodation, but does not allege that he submitted with the request what
disability he is suffering from.
Doc. 1 ¶ 254.
Plaintiff argues that he submitted to
the FCHR a proof of his disability without alleging that this proof accompanied his
request for accommodation.
Id. ¶¶ 276-77. Hence, the Complaint does not make
clear whether Plaintiff made the requisite specific demand that triggers the FCHR’s
duty under Title II. See Smith, 747 F. Supp. 2d at 1338.
As a result, the Court
finds that Plaintiff’s claim against the FCHR under Title II of the ADA is insufficient
and would not withstand a motion to dismiss under Rule 12(b)(6).
In addition, to prevail on a claim for compensatory damages under the ADA,
“a plaintiff must show that a defendant violated his rights under the statutes and did
so with discriminatory intent.”
McCullum v. Orlando Reg’l Healthcare Sys., Inc.,
768 F.3d 1135, 1147 (11th Cir. 2014).
“A plaintiff may prove discriminatory intent
by showing that a defendant was deliberately indifferent to his statutory rights.”
Id.
A showing of deliberate indifference requires that “the defendant knew that harm to
a federally protected right was substantially likely and failed to act on that
likelihood.”
Id.
The FCHR’s alleged failure to provide the requested
accommodation is not enough to support a finding of deliberate indifference.
See id.
Hence, to seek compensatory damages against the FCHR, Plaintiff must show the
FCHR acted with discriminatory intent.
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d) The FCHR’s Sovereign Immunity
Even if Plaintiff has standing to bring and has stated claims under Title II
against the FCHR, the Complaint does not show that the FCHR is exempt from
sovereign immunity of the Eleventh Amendment.
Although the Eleventh
Amendment “ordinarily prohibits a citizen from using an arm of the state in federal
court,” the ADA “unequivocally expresses an intent to abrogate sovereign immunity.”
Black v. Wiginton, 811 F.3d 1259, 1269 (11th Cir. 2016).
The ADA abrogates
sovereign immunity “when a plaintiff complains about a conduct that violates both
Title II and the Fourteenth Amendment.”
Id. The plaintiff “who alleges that type
of claim has successfully invoked our jurisdiction unless his allegations are
‘immaterial and made solely for purpose of obtaining jurisdiction’ or ‘wholly
insubstantial and frivolous.’”
Id.
The standard is “whether the cause of action
alleged is so patently without merit as to justify . . . the court’s dismissal for want of
jurisdiction.”
McGinnis v. Ingram Equip. Co., Inc., 918 F.2d 1491, 1494 (11th Cir.
1990).
Here, Plaintiff’s Complaint does not allege any claim under the Fourteenth
Amendment.
Doc. 1. Furthermore, having found that Plaintiff lacks standing and
has not stated a claim against the FCHR under Title II, the Court finds that his
allegations are wholly insubstantial or frivolous because they do not have a plausible
foundation.
See Black, 811 F.3d at 1269. As a result, the Court finds that it does
not have jurisdiction to entertain Plaintiff’s claims against the FCHR under the
doctrine of sovereign immunity.
See id.
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e) Plaintiff’s Shotgun Pleading
A “shotgun pleading” is one which fails to articulate claims with sufficient
clarity to enable Defendants to adequately frame a response.
Davis v. Coca-Cola
Bottling Co. Consol., 516 F.3d 955, 980 (11th Cir. 2008). Plaintiff’s Complaint is a
“shotgun pleading” because it contains vague, conclusory statements that are
“unadorned, the-defendant-unlawfully-harmed-me accusation[s].”
Ashcroft, 556
U.S. at 678 (citing Twombly, 550 U.S. at 555).
Against the FCHR, the Complaint contains vague, conclusory statements that
the FCHR denied benefits to Plaintiff because the FCHR favors corporations and has
a biased political affiliation.
Doc. 1 ¶¶ 72, 234-36, 244.
Likewise, Plaintiff claims
that SeaWorld harmed Plaintiff because it “wants to discourage the disabled from
visiting [its] parks.”
Id. ¶¶ 142, 145. Along with vague, conclusory allegations,
the Complaint sets forth irrelevant statements including the lengthy descriptions of
how he became certified as a disabled veteran and Defendants’ alleged donations and
connections to the governor.
Id. ¶¶ 90-112, 227-31. As a result, the Complaint fails
to articulate claims with sufficient clarity to enable Defendants to adequately frame
a response.
See Davis, 516 F.3d 955 at 980.
Accordingly, the Court will deny without prejudice Plaintiff’s motion to proceed
in forma pauperis (Doc. 15) and direct Plaintiff to file an amended complaint that
reflects the above instructions.
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III.
Plaintiff’s Three Remaining Motions (Docs. 8, 19, 22)
Plaintiff’s Motion for Court Ordered Service of Summons and Complaint on the
Defendant, SeaWorld Entertainment, and Motion to Show Cause (Doc. 8); Motion for
Emergency Hearing on Plaintiff’s Pending Motions for Court Ordered Service on
SeaWorld, Plaintiff’s Motion for SeaWorld to Show Cause, and for an “Adkins”
Hearing to Grant Plaintiff Leave to Proceed In Forma Pauperis, and Enforce Rule 4
(Doc. 19); and Plaintiff’s Motion to Reconsider this Court’s Order of August 3, 2016
for Abuse of Discretion, or in the Alternative Clarify Order (Doc. 22) remain.
Plaintiff’s two motions (Docs. 8, 19) seek the Court’s service of the summons
and the Complaint to SeaWorld.
On August 3, 2016, the Court took under
advisement Plaintiff’s emergency motion for hearing (Doc. 19).
upon the findings above, these two motions are now moot.
Doc. 22.
Based
As a result, Plaintiff’s
motion to reconsider the Court’s Order (Doc. 22) also is moot.
ACCORDINGLY, it is hereby
ORDERED:
1.
Plaintiff’s Verified Motion to Proceed In Forma Pauperis and Request for
Issue Preclusion as to Poverty with Sworn Declaration (Doc. 15) is DENIED without
prejudice.
2.
Plaintiff’s Motion for Court Ordered Service of Summons and Complaint
on the Defendant, SeaWorld Entertainment, and Motion to Show Cause (Doc. 8);
Plaintiff’s Motion for Emergency Hearing on Plaintiff’s Pending Motions for Court
Ordered Service on SeaWorld, Plaintiff’s Motion for SeaWorld to Show Cause, and for
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an “Adkins” Hearing to Grant Plaintiff Leave to Proceed In Forma Pauperis, and
Enforce Rule 4 (Doc. 19); and Plaintiff’s Motion to Reconsider this Court’s Order of
August 3, 2016 for Abuse of Discretion, or in the Alternative Clarify Order (Doc. 22)
are DENIED as moot.
3.
Plaintiff shall have up to and including January 31, 2017 to file an
amended complaint.
Plaintiff’s failure to file an amended complaint, along with a
new motion to proceed in forma pauperis and supporting documents, or pay the filing
fee, within the time permitted may result in the Court recommending that this action
be dismissed.
DONE and ORDERED in Fort Myers, Florida on this 17th day of January,
2017.
Copies:
Counsel of record
Billy Ray Kidwell pro se
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