Balaban v. Prummell et al

Filing 34

ORDER granting in part and denying in part 28 Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint. The Second Amended Complaint's Counts I and IV, and the punitive damages requests in Counts I, II, III, and IV, are DISMISSED. Plaintiff shall file any Third Amended Complaint within 30 days. See Order for details. Signed by Judge John L. Badalamenti on 6/4/2024. (MAG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICIA BALABAN,
Plaintiff,
v.

Case No: 2:23-cv-379-JLB-NPM

BILL PRUMMELL, as Sheriff of
Charlotte County, Florida
Defendant.
_______________________________________/
ORDER
Plaintiff Patricia Balaban’s Second Amended Complaint (“SAC”) alleges fourcounts under 42 U.S.C. § 1983 against her former employer, Bill Prummell, Sheriff
of Charlotte County, Florida. (Doc. 26 at 1, 5–8). Defendant has filed a Motion to
Dismiss. (Doc. 28). In response, Plaintiff “concede[s] that dismissal is appropriate
as to Counts I and IV” and “that punitive damages cannot be had against
Defendant,” but otherwise opposes Defendant’s Motion. (Doc. 31 at 1–7 & n.1).
In light of Plaintiff’s concessions, Defendant’s Motion to Dismiss is
GRANTED in part, to the extent that Counts I and IV and the punitive damages
requests set forth in all four counts are DISMISSED. For the reasons stated
herein, Defendant’s Motion to Dismiss is otherwise DENIED. Plaintiff shall file
any Third Amended Complaint, consistent with this Order, within 30 days.

LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed
for failure to state a claim upon which relief can be granted. To survive a motion to
dismiss under Rule 12(b)(6), a complaint must contain enough facts to “state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation
marks omitted). This standard of plausibility is met when the plaintiff pleads
“factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. Thus, factual allegations that are “merely consistent with a
defendant’s liability” fall short of this standard. Id. (internal quotation marks
omitted).
When reviewing a motion to dismiss, courts must accept all factual
allegations contained in the complaint as true and view the facts in the light most
favorable to the plaintiff. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1
(11th Cir. 1999); Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). Legal conclusions,
however, are “not entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. As
such, “conclusory allegations, unwarranted factual deductions or legal conclusions
masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc.,
326 F.3d 1183, 1185 (11th Cir. 2003).

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DISCUSSION
I.

Whether the SAC fails to provide sufficient notice of whether
Defendant has been sued in his individual or official capacity
Defendant contends that the SAC is a “shotgun pleading” because it fails to

provide sufficient notice as to whether he is being sued in his official or individual
capacity. (Doc. 28 at 1–2, 4–5). As Defendant recounts, Plaintiff’s motion to amend
her complaint had suggested that Sheriff Prummell was being sued only in his
official capacity. (Id. at 1, 5; see Doc. 19 at 1 (“Plaintiff wishes to amend the
complaint to remove [Prummell] as a defendant in his individual capacity only....”)).
But Defendant points to portions of the SAC to contend that the capacity in which
he has been sued remains unclear—e.g., (i) the SAC’s description of Defendant as a
“natural person” who had been Plaintiff’s “supervisor and ultimately responsible for
[Plaintiff’s] hiring, discipline and termination”; and (ii) the SAC’s assertion of
punitive damages, which Defendant argues are available in section 1983 cases only
against defendants sued in their individual capacity. (Doc. 28 at 4–5, 10 (internal
quotation marks omitted)). 1 Plaintiff, in response, asserts that the SAC’s first
paragraph—which states that Plaintiff “sues defendant, Bill Prummell, as Sheriff of
Charlotte County”—removes any ambiguity here. (Doc. 31 at 2; Doc. 26 at 1
(emphasis added)).
The Eleventh Circuit has explained that “[t]he main concern of a court in
determining whether a plaintiff is suing defendants in their official or individual

Defendant further notes that he has not been served in his official capacity.
(Doc. 28 at 5 n.2).
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capacity is to ensure the defendants in question receive sufficient notice with
respect to the capacity in which they are being sued.” Young Apartments, Inc. v.
Town of Jupiter, 529 F.3d 1027, 1047 (11th Cir. 2008). Although “plaintiffs are not
required to designate with specific words in the pleadings that they are bringing a
claim against defendants in their individual or official capacities,” plaintiffs must
provide defendants with sufficient notice. Id.
In light of Plaintiff’s concession that Count I and IV and her punitivedamages requests should be dismissed from the SAC (Doc. 31 at 1 n.1), the Court
concludes that the best course is for Plaintiff to file a Third Amended Complaint,
which (i) removes these two counts and the punitive-damages requests and (ii)
explicitly states in what capacity Defendant is being sued. See Young Apartments,
529 F.3d at 1047 (stating that “it is ‘clearly preferable’ that a plaintiff state
explicitly in what capacity defendants are being sued”) (citation omitted); see also
Pinto v. Collier County, No. 2:19-cv-551-FtM-60MRM, 2019 WL 5722172, at *2
(M.D. Fla. Nov. 5, 2019) (“Because the Court is granting Plaintiff the opportunity to
amend his complaint, any amended complaint should specifically delineate in which
capacity Plaintiff is suing each of the defendants in each count.”). Although
Defendant requests that the SAC be dismissed with prejudice (Doc. 28 at 2, 5), the
SAC specified at the outset that Defendant was being sued “as Sheriff of Charlotte
County” (Doc. 26 at 1). The Court accordingly concludes that clarification, rather

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than dismissal with prejudice, is appropriate. 2 Plaintiff’s Third Amended
Complaint should explicitly state in what capacity Defendant is being sued and
should be appropriately served.
II.

Whether Counts II and III of the SAC fail to state a claim for relief
Counts II and III of the SAC allege, respectively, that Defendant violated

Plaintiff’s Equal Protection and First Amendment rights. (Doc. 26 at 6–7).
Defendant moves to dismiss both Counts II and III on the ground that they each fail
to allege but-for causation. (Doc. 28 at 2, 7–8). Defendant points to Plaintiff’s
allegation in one paragraph of the SAC—that she was terminated “because
[Defendant] was embarrassed”—to argue that the SAC fails to allege that Plaintiff
was terminated (i) because of her gender (Count II), and (ii) in retaliation for her
speech (Count III). (Id. at 2, 8 (quoting Doc. 26 at ¶ 23) (emphasis altered)).
In response, Plaintiff refers to additional SAC paragraphs to contend that
Counts II and III sufficiently state a claim. (Doc. 31 at 2–6 (citing Doc. 26 at ¶¶ 24,
32, 35)). As to the Equal Protection Claim (Count II), Plaintiff points to paragraphs
24 and 32, which respectively allege:

The Court further notes that although the Magistrate Judge had
“encourage[d] plaintiff to revisit her proposed second-amended complaint
considering defendant’s arguments” in response to her motion to amend (Doc. 21;
see Doc. 28 at 1–2), this Order is the Court’s first substantive decision on a motion
to dismiss in this case. (See Doc. 27 (denying previous motion to dismiss as moot
due to the filing of the SAC)).
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A review of prior incidents of discipline of PRUMMEL’s law
enforcement personnel under the general orders under which Plaintiff
was disciplined, shows that Plaintiff’s termination was inconsistent
with and significantly departed from the punishments previously
imposed for conduct of similar magnitude against males. . . .
The conduct of PRUMMELL deprived Plaintiff of equal protection of
the law under the 14th Amendment to the United States Constitution,
in that she was treated differently as to the discipline imposed upon
her than similarly situated males.
(Doc. 31 at 3–4; Doc. 26 at ¶¶ 24, 32). As to her First Amendment retaliation claim,
Plaintiff refers to paragraph 35, which alleges:
The foregoing acts and practices of PRUMMELL constituted a
deprivation of Plaintiff’s right to free speech under the First
Amendment to the United States Constitution, in that in investigating
and ultimately terminating Plaintiff, PRUMMELL was retaliating
against Plaintiff for exercising her right to report the misconduct of the
Fort Myers Police Department and the reporting of a crime against
her, which were in part matters of public concern.
(Doc. 31 at 6; Doc. 26 at ¶ 35).
The Court disagrees with Defendant’s reliance on one paragraph of the SAC
(i.e., paragraph 23) to contend that the SAC fails to state a claim in Counts II and
III. See, e.g., Speaker v. U.S. Dep’t of Health & Human Servs., 623 F.3d 1371, 1382–
83 (11th Cir. 2010) (reading the complaint “as a whole” and rejecting motion to
dismiss argument premised on one paragraph in the complaint) (citing Aldana v.
Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1252 n.11 (11th Cir.2005) (“[w]e
read the complaint as a whole”) (internal quotation marks omitted)). Here, Plaintiff
has alleged in Count II disparate treatment as compared with similarly situated
males. See, e.g., Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1312 (11th Cir. 2018)
(“The Equal Protection Clause of the Fourteenth Amendment prohibits . . . sex
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discrimination in public employment.”); Austin v. City of Montgomery, 353 F. App’x
188, 191 (11th Cir. 2009) (“To properly plead an equal protection claim, a plaintiff
must allege that, through state action, similarly situated persons are treated
disparately.”). Further, Plaintiff has alleged in Count III that she was terminated
in retaliation for her speech. See, e.g., Alves v. Bd. of Regents of the Univ. System of
Ga., 804 F.3d 1149, 1159 n.4 (11th Cir. 2015) (outlining analysis for “a public
employee’s claim that her employer’s disciplinary action was in retaliation for
constitutionally protected speech,” including that “the speech played a substantial
part in the adverse employment action”). Accordingly, Defendant’s Motion to
Dismiss is due to be denied.
That said, Plaintiff shall file a Third Amended Complaint based on her
concession that Counts I and IV, and her punitive damages requests, should be
dismissed. Moreover, because Counts I and IV are dismissed, Plaintiff should
revisit whether any of her factual allegations in the SAC’s first 26 paragraphs
related only to those counts. As a final note, Plaintiff is reminded that a complaint
should satisfy the Twombly/Iqbal standard—i.e., its allegations should not consist
of “barren recitals of the statutory elements, shorn of factual specificity.” Speaker,
623 F.3d at 1384 (citing Twombly, 550 U.S. at 555). Indeed, Plaintiff should ensure
that the Third Amended Complaint complies with the governing pleading
standards.

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CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss (Doc. 28) is
GRANTED in part and DENIED in part. The SAC’s Counts I and IV, and the
punitive damages requests in Counts I, II, III, and IV, are DISMISSED. Should
Plaintiff choose to proceed forth with this litigation, she shall file a Third Amended
Complaint, consistent with this Order, within 30 days.
ORDERED at Fort Myers, Florida on June 4, 2024.

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