Harder v. Hunter et al

Filing 46

ORDER denying as moot 43 Motion for summary judgment; granting 22 Motion to Dismiss for Failure to State a Claim; dismissing with prejudice Plaintiff's Amended Complaint; directing the Clerk to terminate all pending motions and close the file. Signed by Judge Timothy J. Corrigan on 10/9/2013. (ALB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

CHARLES E. HARDER, acting for
wife Diana,
Plaintiff,
vs.

Case No. 3:12-cv-799-J-32JBT

MARK HUNTER, Sheriff of Columbia
County, and COLUMBIA COUNTY
COMMISSION,
Defendants.

ORDER
This case is before the Court for review of the pending motions. Upon review of
plaintiff’s complaint (Doc. 1) and plaintiff’s amended complaint (Doc. 11), the Court finds no
possibility of a claim under 42 U.S.C. § 1983.
I.

Background
On July 26, 2012, pro se Plaintiff filed this case acting also for his wife Dianne

Harder.1 (Doc. 1.) The original complaint was filed against defendants Sheriff Mark Hunter,
Detective Debbie Marsalak, Columbia County, and the Columbia County Commission. (Id.)
The original complaint appeared to be alleging a violation of civil rights under 42 U.S.C. §
1983 due to the Sheriff’s failure to arrest a certain individual. (See id.) On January 2, 2013,
Plaintiff filed an amended complaint; the only change to the complaint is that Plaintiff now
names only Sheriff Mark Hunter and the Columbia County Commission as Defendants. (Doc.
1

While Mr. Harder is not allowed to represent his pro se wife, the Court nevertheless will
address the merits of the case as to both of them.

11.) Plaintiff’s factual allegations are again based on the individual allegedly scamming Mr.
and Mrs. Harder and on Sheriff Hunter’s refusal to arrest the individual and “reclaim” the
allegedly stolen equipment. Plaintiff claims Sheriff Hunter’s refusal to enforce Florida’s grand
theft, elder abuse, or fraud laws constitutes a violation of his civil rights. (See id. at 2-5.)
On March 26, 2013, defendants filed a motion to dismiss for failure to state a claim
upon which relief can be granted. (Doc. 22.) On April 2, 2013, defendants filed a motion
for sanctions seeking dismissal of the case due to email communications from plaintiff to
defense counsel. (Doc. 24.) On April 5, 2013, plaintiff filed an answer to the motion to
dismiss (Doc. 26), which the Court will construe as a response. On April 8, 2013, plaintiff
filed a motion to strike defendants motion for sanctions (Doc. 27), which the Court construed
as a response. On April 26, 2013, the assigned United States Magistrate Judge held a
hearing on the Motion for Sanctions and declined to impose sanctions at that time, but
continued to take the motion under advisement in the event Mr. Harder’s conduct warranted
sanctions in the future. (Doc. 35 at 4.) On June 21, 2013, plaintiff filed a motion for
summary judgment.2 (Doc. 43.)
II.

Standard of Review
Because plaintiff is proceeding pro se, his pleadings are held to a less stringent

standard than pleadings drafted by an attorney, and will be liberally construed. Tannenbaum
v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). When considering a motion to
dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the non-moving

2

Plaintiff has also since filed a “Proffer” (Doc. 44) and a “Case Report” (Doc. 45), neither
of which change this Court’s decision.
2

party’s pleading as true and consider the allegations in the light most favorable to the nonmoving party. Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1336 (11th Cir. 2006); Hill
v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). The Court should dismiss a claim where a
party fails to plead facts that make the claim facially plausible. Sinaltrainal v. Coca-Cola Co.,
578 F.3d 1252, 1260 (11th Cir. 2009) (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009)).
A claim is facially plausible where the Court can make a reasonable inference based on the
facts pled that the opposing party is liable for the alleged misconduct. Iqbal, 129 S. Ct. at
1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
III.

Analysis
A.

Columbia County Commission

Plaintiff’s amended complaint does not allege any claims against defendant Columbia
County Commission. Plaintiff appears to mistakenly believe that Columbia County employs
the Sheriff and is therefore liable for his actions. The Columbia County Commission does
not employ the Sheriff.

Therefore, the claims against Defendant Columbia County

Commission will be dismissed.3
B.

Mark Hunter, Sheriff of Columbia County

Plaintiff alleges that Sheriff Hunter failed to enforce the laws of Florida. To state a
cause of action under 42 U.S.C. § 1983, plaintiff must show (1) that he was deprived of a
constitutional right, and (2) that such deprivation occurred under color of state law. Arrington

3

Even if the Columbia County Commission employed Sheriff Hunter, a municipality
cannot be liable under § 1983 based on respondeat superior. See Monell v. Dept. of Social
Servs., 436 U.S. 658, 691 (1978).
3

v. Cobb Cnty., 139 F.3d 865, 872 (11th Cir. 1998). Plaintiff has not alleged a constitutional
right of which he was deprived. Plaintiff alleges that his civil rights were violated by the
Sheriff’s failure to arrest the individual and uphold the laws of Florida. Protection under the
Due Process Clause is not offered to a party who might benefit from having someone else
arrested for a crime. Town of Castle Rock Colo. v. Gonzales, 545 U.S. 748, 768 (2005)
(“[T]he benefit that a third party may receive from having someone else arrested for a crime
generally does not trigger protections under the Due Process Clause, neither in its
procedural nor in its ‘substantive’ manifestations.”).
Moreover, Plaintiff has no legitimate entitlement to, and thus no property interest in,
having the individual arrested. See Town of Castle Rock Colo., 545 U.S. at 756 (“The
procedural component of the Due Process Clause does not protect everything that might be
described as a ‘benefit’: To have a property interest in a benefit, a person clearly must have
more than an abstract need or desire and more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it.”) (quotations omitted). And, “a benefit is
not a protected entitlement if government officials may grant or deny it in their discretion.”
Id. Under Florida law “the decision of whether to enforce the law by making an arrest is a
basic judgmental or discretionary governmental function that is immune from suit.” Everton
v. Willard, 468 So. 2d 936, 937-38 (Fla. 1985). Thus, Plaintiff has failed to state a claim for
relief against either Defendant.4

4

Although he has no legal claim against the Sheriff, Mr. Harder may want to consider
taking his allegations straight to the State Attorney’s Office or the U.S. Attorney’s Office to
see if they will consider them.
4

Accordingly, it is hereby
ORDERED:
1.

Defendants’ Motion to Dismiss (Doc. 22) is GRANTED.

2.

Plaintiff’s Amended Complaint is DISMISSED with prejudice.

3.

Plaintiff’s Motion for Summary Judgment (Doc. 43) is denied as moot.

3.

The Clerk of Court is directed to terminate all pending motions and close the
file.

DONE AND ORDERED at Jacksonville, Florida this 9th day of October, 2013.

b.
Copies to:
Honorable Joel B. Toomey
United States Magistrate Judge
pro se plaintiff
counsel of record

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