Agostino v. City of Cape Coral et al

Filing 42

OPINION AND ORDER granting 39 Defendant's Motion to Dismiss and the Second Amended Complaint is dismissed without prejudice to filing a Third Amended Complaint within 14 days of this Opinion and Order. The failure to file a Third Amended Complaint will result in the closure of this case without further notice. Signed by Judge John E. Steele on 2/26/2018. (BLW)

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 defendant City of Cape
Coral’s Motion to Dismiss for Failure to State a Claim (Doc. #39)
filed

on

December

29,

2017.

Plaintiff

Opposition (Doc. #410) on January 31, 2018.1

filed

a

Response

in

For the reasons set

forth below, the Motion is granted with leave to amend.
I.
On March 6, 2017, plaintiff pro se Joseph D. Agostino filed
his original Complaint (Doc. #1) against the City of Cape Coral,
Code Enforcement for the City of Cape Coral, the Mayor of Cape

On January 17, 2018, plaintiff was granted an extension of
time to respond to the motion until January 31, 2018. (Doc. #40.)
1

Coral, two employees of Code Enforcement, and a Special Magistrate
for violations of his civil rights.

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) and an Amended
Complaint Statement of Claims (Doc. #26).
On December 6, 2017, the Court granted defendant’s Motion to
Dismiss the Amended Complaint for failure to plead sufficient
allegations, with leave to file a Second Amended Complaint.
#37.)

(Doc.

In that Order, the Court noted that plaintiff did not

specify how each named defendant participated in the violation of
his civil rights and failed to indicate how he was discriminated
against based on his disability.

The Court informed plaintiff

that the Second Amended Complaint must specify the actions of each
defendant individually without lumping defendants together and
each claim must be stated in a separate count.

(Id. at 8.)

Plaintiff filed a Second Amended Complaint on December 20,
2017 (Doc. #38), alleging that the Code Enforcement City of Cape
Coral entered his property without a warrant in violation of the

- 2 -

Fourth, Fifth2, and Fourteenth Amendments of the U.S. Constitution.
Plaintiff also names numerous other Cape Coral officials and
employees of the City’s Department of Community Development, sued
in their individual and official capacities.
the

Florida

Constitution.

Plaintiff

Plaintiff also cites

further

alleges

that

defendants violated the Americans with Disabilities Act (ADA) by
denying him easy access to his boat, which plaintiff states is
therapeutic for him.
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.”
(citation

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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).

Plaintiff improperly raises the Fifth Amendment.
Civil
rights claims brought against state actors are available only under
the Fourteenth Amendment.
See Weiland v. Palm Beach Cty.
Sheriff’s Office, 792 F.3d 1313, 1328 (11th Cir. 2015) (noting
that the Fifth Amendment protects a citizen’s rights against
infringement by the federal government, not by state government).
The amended complaint should not include any Fifth Amendment claim.
2

- 3 -

This requires “more than an unadorned, the-defendant-unlawfullyharmed-me 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.”
v.

Berzain,

omitted).

654 F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

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

with

a

facially plausible.”

“Factual allegations that are merely

defendant’s

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal 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 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).

- 4 -

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.

III.
Plaintiff’s claims stem from Code Enforcement Officer Suzanne
Naughton’s entry onto his residential property in Cape Coral to
post ordinance violations.
Notices

of

Violation.)

(Docs. ##38, pp. 3-4; 38-2; 38-3,
Plaintiff’s

boat

was

parked

in

his

driveway in violation of Cape Coral Municipal Ordinance 3.12.6,
which requires that any boat or boat trailer be stored behind a
home.

(Doc. #38-2.)

Plaintiff alleges that he is disabled and

he must park his boat in front of his house in order to hitch the
boat to his vehicle.

He also alleges that being able to see the

boat is therapeutic to him and “no trespass” signs were posted
throughout his property.
The

Second

Amended

Complaint

still

together and fails to set forth how

lumps

all

each defendant

plaintiff’s civil rights into separate counts.
plaintiff

states

that

Special

defendants

Magistrate

Harold

violated

For example,
Eskin

heard

testimony and ruled against him, but fails to state how his actions
violated plaintiff’s rights.

Furthermore, the Second Amended

Complaint includes a section titled “Argument” and a 12-page
summary of Section 1983 law, inapplicable to this case and these

- 5 -

defendants.

As currently pled, plaintiff again fails to state a

claim.3
The Court will allow plaintiff one final opportunity to amend
before dismissing this case.

In order to state a cause of action

that may move forward, in his Third Amended Complaint plaintiff
must articulate what each defendant did to violate his civil
rights.

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.

Plaintiff

should not include any summary of the law in the Third Amended
Complaint.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant City of Cape Coral’s Motion to Dismiss (Doc. #39)
is GRANTED and the Second Amended Complaint (Doc. #38) is dismissed
with prejudice to filing a Third Amended Complaint within FOURTEEN

City of Cape Coral states that “Code Enforcement City of
Cape Coral” does not exist; rather, code compliance is within the
City’s Department of Community Development. (Doc. #39, p. 2.)
3

- 6 -

(14) DAYS of this Opinion and Order.

The failure to file a Third

Amended Complaint will result in the closure of the case without
further notice.
DONE and ORDERED at Fort Myers, Florida, this _26th_ day of
February, 2018.

Copies:
Plaintiff
Counsel of Record

- 7 -