Agostino v. City of Cape Coral et al

Filing 37

OPINION AND ORDER granting 29 Motion to Dismiss and the Amended Complaint is dismissed without prejudice to filing a Second Amended Complaint within 14 days of this Opinion and Order. The failure to file a Second Amended Complaint will result in the closure of this case without further notice. Signed by Judge John E. Steele on 12/6/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPH D. AGOSTINO,
Plaintiff,
v.

Case No:

2:17-cv-135-FtM-99CM

CITY OF CAPE CORAL, CODE
ENFORCEMENT
CITY OF CAPE
CORAL,
MARINA
SAWICKI,
Mayor,
SUZANNE
NAUGHTON,
Code Enforcement, RICHARD
LEON,
Code
Enforcement
Manager,
CAROL
RALL,
Supervisor, and HAROLD S.
ESKIN, Special Magistrate,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss Amended Complaint (Doc. #29) filed on August 25,
2017.

Plaintiff filed a Statement of Record Evidence Disability

Discrimination: U.S. Supreme Court Cases (Doc. #33) on November
20, 2017, which the Court will treat as a response. 1

For the

reasons set forth below, the motion will be granted.
I.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing

1

On October 2, 2017, plaintiff was granted an extension of
time to respond to the motion until November 20, 2017. (Doc. #32.)

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

accusation.”

an

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
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

action,

supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

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,

2

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.
II.
On March 6, 2017, plaintiff filed his original Complaint (Doc.
#1) against the City of Cape Coral, Code Enforcement for the City
of Cape Coral, the Mayor of Cape Coral, two employees of Code
Enforcement, and a Special Magistrate.

On July 28, 2017, before

plaintiff elected to pay the filing fee, the Magistrate Judge
reviewed the original complaint for sufficiency pursuant to 28
U.S.C. § 1915(a), and found that it failed comply with Federal
Rule of Civil Procedure 8, and failed to present a plausible legal
claim.

Plaintiff was provided the opportunity to file an amended

complaint

and

assistance.

“encouraged

(Doc. #21.)

to

visit”

the

Court’s

website

for

On August 21, 2017, plaintiff paid the

filing fee and filed an Amended Complaint (Doc. #25).
Along with the Amended Complaint, plaintiff filed a separate
document entitled Amended Complaint Statement of Claims (Doc. #26)
asserting a First Claim for Relief under 42 U.S.C. § 1983 for
violations of the Fourth and Fourteenth Amendment to the United
States Constitution without further detail.
the documents together.

The Court will read

The Amended Complaint itself is only two

pages, and plaintiff did not reattach copies of the exhibits that
were attached to the original Complaint.

3

The Court will also

consider those as if incorporated into the Amended Complaint by
reference.
In the Amended Complaint, plaintiff alleges that the Code
Enforcement City of Cape Coral entered his property without a
warrant

in

violation

Constitution.
Plaintiff

of

the

Fourth

Amendment

of

the

U.S.

Plaintiff also cites the Florida Constitution.

states

that

damages

are

still

accumulating

because

unlawful hearings are still being held and fines levied. Plaintiff
alleges that the City of Cape Coral, Code Enforcement, and “its
corrupt enforcers” are liable for damages.
that

the

Americans

with

Disabilities

Plaintiff also argues
Act

(ADA)

requires

a

reasonable modification because he is disabled, and that his civil
rights as a disabled person are being denied.

Plaintiff makes no

specific factual allegations as to the City, Code Enforcement, or
the individuals named in the caption.
In

plaintiff’s

Statement

of

Record

Evidence

(Doc.

#33),

construed as a response, plaintiff states that Code Enforcement
denied him a modification before a “magistrate who is bought and
paid for by the counsel”, which is an act of conspiracy.

Plaintiff

also

yard

states

that

his

vehicles

were

taken

from

his

and

auctioned by Code Enforcement even though he is a disabled Veteran,
and he was threatened with jail if he didn’t comply.

None of these

statements are contained in the Amended Complaint, and neither is
the referenced “evidence that has been filed by me in this case.”

4

Attached to the original Complaint are: (1) a Notice of
Violation indicating that a violation of Cape Coral Code 3.12.6
had occurred at the listed address on September 22, 2016, and that
the boat and trailer must be stored behind the house within 5 days
from receipt of notification; (2) an Acknowledgement of Receipt
indicating that a Notice of Hearing for April 20, 2017, was posted
at the address on March 3, 2017 by Code Enforcement Officer Suzanne
Naughton; and (3) a Notice of Hearing setting the public hearing
before Cape Coral Code Compliance Special Master Harold S. Eskin,
which decision can be appealed.

(Doc. #1-1.)

III.
A pleading drafted by a party proceeding unrepresented (pro
se) is held to a less stringent standard than one drafted by an
attorney, and the Court will construe the documents filed as a
complaint and amended complaint liberally.

Jones v. Fla. Parole

Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015).

Nevertheless, “a

pro se pleading must suggest (even if inartfully) that there is at
least some factual support for a claim; it is not enough just to
invoke a legal theory devoid of any factual basis.”

Id.

Construed

liberally, plaintiff alleges a claim under Section 1983, and under
the ADA.
Section 1983
Under Section 1983, any person who under color of state law
subjects a citizen “to the deprivation of any rights, privileges,

5

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, 156 (1978).

Flagg Bros. v. Brooks,

To sue the City of Cape Coral, a

“municipality cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable
under § 1983 on a respondeat superior theory.”

Monell v. Dep't of

Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978) (emphasis
in original).

To prevail, plaintiff must establish a policy,

custom, or practice that caused a deprivation of plaintiff’s
rights.

Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir.

2016).
Plaintiff alleges a Section 1983 violation by defendants in
violation of the Fourth Amendment, but refers to Code Enforcement
and the City in a generic fashion without identifying how any of
the named individuals violated plaintiff’s civil rights.

Further,

the Amended Complaint and Amended Complaint Statement of Claims
fail to set forth any factual basis for a civil rights violation
by any of the defendants.

For example, the existence of the code

violation was gleaned entirely from the attachments to the original
complaint but the nature of the violation, what transpired, and
what actions plaintiff took in response to the violation under
color of law are not in the Amended Complaint, and remain unknown.

6

Plaintiff

alleges

that

Code

Enforcement

entered

his

property

without a warrant but plaintiff does not allege why a warrant was
required to enforce the Ordinance.

The alleged seizure identified

in the Statement of Record Evidence is not included in the Amended
Complaint.

Further, plaintiff does not specify how each named

defendant participated in the violation of his civil rights.

As

currently pled, plaintiff fails to state a claim under Section
1983, and the motion to dismiss is due to be granted.
ADA
Under Title II of the ADA, “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation

in

or

be

denied

the

benefits

of

the

services,

programs, or activities of a public entity, or be subjected to
discrimination by any such entity.”

42 U.S.C. § 12132.

“In order

to state a claim for violation of Title II of the ADA, ‘the
plaintiff must show disability, the denial of a public benefit,
and that such denial of benefits, or discrimination was by reason
of the plaintiff's disability.’”

Grimes v. Florida, 71 F. Supp.

3d 1319, 1323 (M.D. Fla. 2014) (quoting Kornblau v. Dade Cnty., 86
F.3d 193, 194 (11th Cir. 1996) (citation omitted)).
Plaintiff loosely references the ADA but does not indicate
his specific disability, what benefit he was denied, or who or how
he was discriminated against based on his disability.

7

The motion

to dismiss must be granted as to any claim under the ADA for
failure to state a claim.
IV.
Plaintiff will be provided the opportunity to file a “Second
Amended Complaint”, which may include any additional defendants
that plaintiff had intended to add to the amended complaint. 2

All

allegations

and

should

be

contained

in

a

single

document,

supporting documents should be attached as exhibits to the second
amended complaint.
The second amended complaint must allege facts supporting
each of plaintiff’s claims and name all parties he wishes to name
as defendants.

In doing so, plaintiff must specify the actions of

each defendant individually without lumping defendants together as
a collective defendant taking a collective action.

Pursuant to

Federal Rule of Civil Procedure 10, the allegations should be set
forth in separate numbered paragraphs, “each limited as far as
practicable to a single set of circumstances”
10(b).

Fed. R. Civ. P.

Further, each claim “founded on a separate transaction or

occurrence” must be stated in a separate “Count.”

Id.

For additional resources and assistance, plaintiff may wish
to consult the “Proceeding Without a Lawyer” resources on filing

2

On November 21, 2017, plaintiff’s Motion to Add Defendants
was denied without prejudice for lack of legal support.
(Doc.
#36.)

8

a pro se complaint that are provided on the Court’s website, at
http://www.flmd.uscourts.gov/pro_se/default.htm.

The website has

tips, answers to frequently-asked questions, and sample forms.
There is also a link that, through a series of questions, may help
Plaintiff generate the second amended complaint.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss Amended Complaint (Doc. #29) is
GRANTED and the Amended Complaint is dismissed without prejudice
to filing a Second Amended Complaint within FOURTEEN (14) DAYS of
this Opinion and Order in compliance with the directives above.
The failure to file a Second Amended Complaint will result in the
closure of the case without further notice.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2017.

Copies:
Plaintiff
Counsel of record

9

6th

day of