Jones v. Lee County Department of Human and Veteran Services
Filing
35
OPINION AND ORDER accepting and adopting 31 Report and Recommendations as to the dismissal of the Second Amended Complaint. The Second Amended Complaint is dismissed without prejudice to filing a Third Amended Complaint within 30 days of the Opinion and Order. Signed by Judge John E. Steele on 11/14/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONALD JONES,
Plaintiff,
v.
Case No:
2:17-cv-427-FtM-29CM
LEE COUNTY DEPARTMENT OF
HUMAN AND VETERAN SERVICES,
Defendant.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #31), filed
October 23, 2018, recommending that the case be dismissed without
prejudice.
On November 6, 2018, plaintiff filed an untitled
document indicating that a previously filed motion was his response
to the Report and Recommendation.
Answering
the
Report
and
(Doc. #34.)
Recommendation
Plaintiff’s Motion
(Doc.
#32)
will
be
construed as an objection and addressed accordingly.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.
28 U.S.C. §
636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.
2010).
A district judge “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations
to
which
objection
is
made.”
28
U.S.C.
§
636(b)(1).
See also United States v. Farias-Gonzalez, 556 F.3d
1181, 1184 n.1 (11th Cir. 2009).
This requires that the district
judge “give fresh consideration to those issues to which specific
objection has been made by a party.”
Jeffrey S. v. State Bd. of
Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609,
94th
Cong.,
§
2
(1976)).
The
district
judge
reviews
legal
conclusions de novo, even in the absence of an objection.
See
Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.
1994).
The Magistrate Judge reviewed the Second Amended Complaint
(Doc. #22) pursuant to 28 U.S.C. § 1915(e)(2).
The Magistrate
Judge
was
found
that
the
Second
Amended
Complaint
a
shotgun
pleading, and failed to state a plausible claim for relief.
More
specifically, to the extent plaintiff’s claim was based on a
disability, under the ADA, ADEA, or Title VII, plaintiff failed to
allege
a
qualifying
defendant.
stated.
disability,
Therefore,
no
or
disability
that
he
was
employed
discrimination
claim
by
is
To the extent that plaintiff’s claim is under Title VI,
the Magistrate Judge found a lack of discriminatory intent alleged,
and no allegation that defendant or any of defendant’s programs
received
federal
funding.
The
Magistrate
Judge
found
that
plaintiff failed to allege any particular constitutional violation
that complied with Fed. R. Civ. P. 8, and therefore failed to state
a constitutional claim.
Lastly, the Magistrate Judge suggests
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that plaintiff fails to allege subject matter jurisdiction under
Bell and its progeny.
See Bell v. Hood, 327 U.S. 678, 682–83
(1946) (“The previously carved out exceptions are that a suit may
sometimes be dismissed for want of jurisdiction where the alleged
claim under the Constitution or federal statutes clearly appears
to be immaterial and made solely for the purpose of obtaining
jurisdiction or where such a claim is wholly insubstantial and
frivolous.”).
Plaintiff calls the finding that plaintiff did not work for
defendant a criticism in light of the finding that the case was
timely filed after issuance of the Right to Sue Letter.
Plaintiff
argues that the case was delayed only to conclude that he filed a
shotgun pleading, which harmed plaintiff.
Plaintiff argues that
the Magistrate Judge “fabricated” claims by considering his claim
under various federal statutes.
(Doc. #32.)
Plaintiff objects
that he should be granted a hearing so that he can introduce more
evidence.
After a careful and complete review of the findings and
recommendations, as well as the record in this case, the Court
accepts the Report and Recommendation of the magistrate judge to
dismiss the Second Amended Complaint for failure to state a claim
as
currently
pled.
Plaintiff
did
not
identify
any
specific
Constitutional provisions or federal statutes as the basis for his
claim.
The Magistrate Judge properly considered all possible
- 3 -
bases for plaintiff’s claim in light of his pro se status, and as
stated in the attached Charge of Discrimination, and still found
the pleading to be lacking.
Having determined that the case may
be dismissed on this basis alone, the Court need not reach the
issue of whether plaintiff sufficiently alleged subject matter
jurisdiction.
The Court finds that plaintiff is not entitled to
a hearing, or discovery before a Federal Rule of Civil Procedure
26(f) meeting.
The Court overrules the objections.
The Court will dismiss the Second Amended Complaint without
prejudice, but not the entire case.
Plaintiff will be granted one
last chance to present a viable pleading to the Court consistent
with the directives in the July 16, 2018 Opinion and Order (Doc.
#18).
Specifically,
The Amended Complaint loosely references
“discrimination” and the Constitution, but
fails to state a claim under any specific law
or constitutional provision to support a
private cause of action. The Civil Cover Sheet
checked off “federal question” for the
jurisdictional basis, and marked Americans
with Disabilities Act and “Other labor
Litigation” as bases for his cause of action
for “discrimination” under the Civil Rights
Act of 1964, but plaintiff does not indicate
that he has a disability that was the basis of
discrimination.
(Doc. #18, pp. 4-5.)
The Magistrate Judge raised these same
concerns in the Report and Recommendation regarding the Second
Amended Complaint also fails to address the previously raised
concerns.
Plaintiff is encouraged to incorporate additional facts
- 4 -
as to defendant’s role, what actions took place, and how they
violated a constitutional or federal statutory right.
Plaintiff
should also provide more information about what damages he is
seeking.
The Second Amended Complaint must be supported with an
adequate basis for subject matter jurisdiction for the case to
proceed.
Accordingly, it is now
ORDERED:
1. The Report and Recommendation (Doc. #31) is hereby ACCEPTED
and ADOPTED as to the dismissal of the Second Amended Complaint.
2.
The
Second
Amended
Complaint
is
dismissed
without
prejudice to filing a Third Amended Complaint within THIRTY (30)
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
of November, 2018.
Copies:
All Parties of Record
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14th
day
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