Agostino v. City of Cape Coral et al
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,
CITY OF CAPE CORAL, CODE
CITY OF CAPE
Code Enforcement, RICHARD
Supervisor, and HAROLD S.
ESKIN, Special Magistrate,
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,
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
reasons set forth below, the motion will be granted.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
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
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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).
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).
supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
“Factual allegations that are merely consistent
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.”
U.S. at 679.
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
Plaintiff was provided the opportunity to file an amended
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.
The Court will also
consider those as if incorporated into the Amended Complaint by
In the Amended Complaint, plaintiff alleges that the Code
Enforcement City of Cape Coral entered his property without a
Plaintiff also cites the Florida Constitution.
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.
Plaintiff also argues
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.
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.
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.”
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.
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).
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.”
liberally, plaintiff alleges a claim under Section 1983, and under
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, 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
To prevail, plaintiff must establish a policy,
custom, or practice that caused a deprivation of plaintiff’s
Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir.
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.
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.
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
Further, plaintiff does not specify how each named
defendant participated in the violation of his civil rights.
currently pled, plaintiff fails to state a claim under Section
1983, and the motion to dismiss is due to be granted.
Under Title II of the ADA, “no qualified individual with a
disability shall, by reason of such disability, be excluded from
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.”
42 U.S.C. § 12132.
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.
to dismiss must be granted as to any claim under the ADA for
failure to state a claim.
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
supporting documents should be attached as exhibits to the second
The second amended complaint must allege facts supporting
each of plaintiff’s claims and name all parties he wishes to name
In doing so, plaintiff must specify the actions of
each defendant individually without lumping defendants together as
a collective defendant taking a collective action.
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”
Fed. R. Civ. P.
Further, each claim “founded on a separate transaction or
occurrence” must be stated in a separate “Count.”
For additional resources and assistance, plaintiff may wish
to consult the “Proceeding Without a Lawyer” resources on filing
On November 21, 2017, plaintiff’s Motion to Add Defendants
was denied without prejudice for lack of legal support.
a pro se complaint that are provided on the Court’s website, at
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
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
Counsel of record
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