Lloyd v. Kalinowski et al

Filing 40

ORDER granting 32 Defendant Gary Baker's Motion to Dismiss. The Clerk shall enter judgment in accordance with this Order and close the case. Signed by Judge Marcia Morales Howard on 9/16/2015. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ORVEL WINSTON LLOYD,
Plaintiff,
v.

Case No. 3:13-cv-903-J-34PDB

GARY BAKER,
Defendant.
ORDER
THIS CAUSE is before the Court on Defendant Gary Baker’s
Motion to Dismiss (Doc. #32; Motion) filed on December 1, 2014.
Plaintiff filed his response on March 18, 2015.
Response

to

Response).

Defendant

Baker’s

Motion

to

See Plaintiff’s

Dismiss

(Doc.

#39;

Accordingly the Motion is ripe for review.

As an initial matter, the Court notes that since Defendant
Gary Baker (Baker) filed an Answer (Doc. #10) in this case, he
cannot subsequently file a motion pursuant to Rule 12(b)(6),
Federal Rules of Civil Procedure (Rule(s)).

See Rule 12(b)(6)

(stating that a Rule 12(b)(6) motion must be filed “before pleading
if a responsive pleading is allowed.”).

Therefore, under Rule

12(b), Baker’s Motion is technically untimely.

However, while a

12(b) motion would be untimely, the defense of failure to state a
claim is properly raised at this stage of the proceedings in a
motion for judgment on the pleadings.

See Fed. R. Civ. P.

12(h)(2)(B); Skrtich v. Thornton, 280 F.3d 1295, 1307 n.13 (11th
Cir. 2002) (noting that “a [Rule 12(b)(6)] motion may be construed

as a request for judgment on the pleadings pursuant to [Rule]
12(c)”) (emphasis original); see also Whitehurst v. Wal-Mart Stores
East, L.P., 329 F. App’x 206, 208 (11th Cir. 2008) (per curiam)
(rejecting plaintiff’s argument that Rule 12(b)(6) motion was
untimely because court could construe it as a Rule 12(c) motion).
Therefore, the Court construes Baker’s Motion as a motion for
judgment on the pleadings.
I.

Background Pertinent Facts1
Plaintiff Orvel Winston Lloyd (Lloyd), an inmate of the Nassau

County Jail (Jail) in Yulee, Florida, who is proceeding pro se,
initiated this action by filing his Complaint pursuant to 42 U.S.C.
§ 1983.

See Complaint and Demand for Jury Trial (Doc. #1;

Complaint).

Lloyd

names

as

defendants

the

following:

John

Kalinowski, Stephen Siegel, and Laura Coggin, all Assistant State
Attorneys for Florida’s Fourth Judicial Circuit; Angela Corey, the
elected State Attorney for the Fourth Judicial Circuit of Florida;
the Honorable Robert M. Foster (Judge Foster), a Circuit Court
judge in the Fourth Judicial Circuit, in and for Nassau County,

1

In considering the Motion, the Court must accept all
factual allegations in the non-moving party’s pleading as true,
consider the allegations in the light most favorable to the nonmoving party, and accept all reasonable inferences that can be
drawn from such allegations. Perez v. Wells Fargo N.A., 774 F.3d
1329, 1335 (11th Cir. 2014); Horsley v. Feldt, 304 F.3d 1125, 1131
(11th Cir. 2002) (citing Ortega v. Christian, 85 F.3d 1521, 1524-25
(11th Cir. 1996)). As such, the facts recited here are drawn from
the Complaint, and may well differ from those that ultimately can
be proved.
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Florida; and Gary Baker (Baker), his attorney in the state court
criminal case.
damages.

See generally id.

As relief, Lloyd seeks monetary

In an Order dated September 2, 2014, the Court dismissed

all of Lloyd’s claims with the exception of the claim against
Baker.

See Order (Doc. #27).

In this remaining claim, Lloyd

alleges that Baker and Judge Foster conspired to improperly hold
Lloyd in jail.

See Complaint at 4-9.

On May 25, 2012, Lloyd was arrested following a search
prompted by information provided by confidential informants.
id. at 3-4.

See

Lloyd asserts that both the search and seizure, as

well as his resulting arrest, were illegal as the affidavit
supporting the search warrant failed to establish probable cause.
See Complaint at 4, ¶¶9-10.
that

Judge

Foster,

the

Following his arrest, Lloyd asserts
presiding

state

court

judge,

took

“vengeance” on Lloyd for having previously filed a lawsuit against
Judge Foster.2

See id.

Lloyd also asserts that, due to threats

Judge Foster directed at Baker, Lloyd’s attorney, Baker refused to
file motions to dismiss the charges on speedy trial grounds or to
suppress the illegally obtained evidence.
at 7, ¶22; at 8, ¶27.

See id. at 5, ¶¶12, 14;

According to Lloyd, Baker informed Lloyd

that “there was not much [Baker] could do” to represent Lloyd since
Judge Foster told Baker that he wanted a conviction.

2

See id. at 6,

See Case No. 3:07-547-cv-J-25TEM, aff’d, 298 F. App’x 836
(11th Cir. 2008) (per curiam).
- 3 -

¶16.

In

addition,

Lloyd

asserts

that

Baker

was

“forced

to

represent Foster’s son on two DUI charges in Duval County for
little compensation.”

See id. at 6, ¶15; at 8, ¶27.

In his Motion, Defendant Baker argues that (1) Lloyd fails to
allege facts to support his allegations or any constitutional
deprivation, and (2) Baker’s actions, as a private citizen, were
not taken “under state law” as required to support a claim under 42
U.S.C.

§

1983,

See

generally

Motion.3

Lloyd

responds

by

reiterating his conspiracy claims and adding that Baker (1) failed
to file any motions to reduce Lloyd’s bond, (2) conspired with
Judge Foster to delay his arraignment, and (3) refused to return
Lloyd’s payment and only worked on his case after Lloyd’s brother
requested the refund.

See Response at 2, ¶¶3-4; at 3-4, ¶5; at 5.

Additionally, Lloyd contends that Baker can be sued under 42 U.S.C.
§ 1983 because as a licensed attorney, he acts “under color of
law.”

See id. at ¶8.

Moreover, Lloyd argues that a private

3

Baker provides an Exhibit A with his Motion, which includes
a copy of the Verdict in one of Lloyd’s state criminal proceedings,
State v. Lloyd, No. 2012-CF-0330 (4th Judicial Circuit).
See
Defendant’s Notice of Filing (Doc. #34).
Further, Lloyd has
already alleged that Baker was his attorney and that the jury found
him not guilty. See Complaint at 3, ¶7; at 6, ¶18. Moreover, the
Court has previously taken judicial notice of two other cases,
State v. Lloyd, Nos. 2012-CF-0331 and 2012-CF-0332 (4th Judicial
Circuit).
See Report and Recommendation (Doc. #17) at 2 n.2;
adopted by Order (Doc. #27) at 2, ¶2. However, the Court need not
consider this document to reach its decision although it likely
could as judicial notice or under the “incorporation by reference”
doctrine. See Horsley, 304 F.3d at 1134-35.
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attorney

who

corruptly

conspires

with

a

judge

can

responsible under § 1983, even if the judge is immune.

be

held

See id.

(citing Kimes v. Stone, 84 F.3d 1121 (9th Cir. 1996) (citing Dennis
v. Sparks, 449 U.S. 24, 28-29, 101 S.Ct. 183, 186-87, 66 L.Ed.2d
185 (1980)).

See Response at 5, ¶8.

Lloyd also argues that his

Complaint and documents show an agreed course of conduct, and that
he has sufficiently stated a cause of action.
10.

See id. at 5-6, ¶¶9-

Finally, Lloyd contends that the Court’s previous denial of

his discovery motions has hampered his ability to respond to the
Motion.
II.

Id. at 6, ¶12.

Standard of Review
In ruling on a motion for judgment on the pleadings, the Court

applies a standard very similar, if not identical, to that when
ruling on a motion to dismiss, brought pursuant to Rule 12(b)(6).
Horsley, 304 F.3d at 1131; see also Hale v. Mingledorf, No. 2:13CV-0228-RWS, 2014 WL 7012772 at *1 (N.D. Ga. Dec. 11, 2014) (“[A]
motion for judgment on the pleadings is subject to the same
standard as Rule 12(b)(6) motion to dismiss.” (quoting Roma Outdoor
Creations, Inc. V. City of Cumming, 558 F. Supp.2d 1283, 1284 (N.D.
Ga. 2008) (internal quotation omitted)); Keller v. Strauss, No.
1:10-CV-3282-RWS, 2011 WL 2470631 at *3 (N.D. Ga. June 17, 2011)
(applying the Rule 12(b)(6) standard to an untimely motion to
dismiss filed after the answer which the court construed as a
motion for judgment on the pleadings under Rule 12(c)); Dorsey v.

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Ga. Dep’t of State Road and Tollway Auth., No. 1:09-CV-1182-TWT,
2009 WL 2477565 at *3 (N.D. Ga. Aug. 10, 2009) (same); Keh v.
Americus-Sumter County Hosp. Auth., No. 1:03-CV-68-2(WLS), 2006 WL
871109 at *2 (M.D. Ga. Mar. 31, 2006) (construing a Rule 12(b)(6)
motion to dismiss filed nearly contemporaneously with the answer as
if the motion were filed under Rule 12(c) and applying the same
standard).

As such, the Court must accept the factual allegations

set forth in the complaint as true and view them in the light most
favorable to the nonmoving party.

See Horsley, 304 F.3d at 1131;

Ortega, 85 F.3d at 1524-25; Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 1949, 173 L.Ed.2d (2009).

In addition, all

reasonable inferences should be drawn in favor of the plaintiff.
See Omar ex. rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir.
2003) (per curiam).
some

minimal

Nonetheless, the plaintiff must still meet

pleading

requirements.

Jackson

v.

Bellsouth

Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations
omitted).

Indeed, while “[s]pecific facts are not necessary[,]”

the complaint should “‘give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081
(2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Further,

the plaintiff must allege “enough facts to state a claim to relief
that is plausible on its face.” Twombly,550 U.S. at 570, 127 S.Ct.

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at 1974, 167 L.Ed.2d 929.

“A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949

(citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
A “plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do.”

Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65

(internal quotations omitted); see also Jackson, 372 F.3d at 1262
(explaining that “[c]onclusory allegations, unwarranted deductions
of facts or legal conclusions masquerading as facts will not
prevent dismissal”) (internal citation and quotations omitted).
Indeed, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions,” which simply “are not entitled to [an] assumption of
truth.”

See Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950.

Thus, in

ruling on a motion to dismiss, the Court must determine whether the
complaint contains “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Id. at
678 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).4

4

Prior to Iqbal, Eleventh Circuit precedent instructed that
a heightened pleading standard applied in § 1983 actions where “the
defendants are individuals who may seek qualified immunity.” See
Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1179 (11th Cir. 2009).
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III. Discussion
“[S]ection 1983 provides individuals with a federal remedy for
the deprivation of rights, privileges, or immunities protected by
the

Constitution

or

the

laws

of

the

committed under color of state law.”

United

States

that

are

Brown v. City of Huntsville,

Ala., 608 F.3d 724, 733 n.12 (11th Cir. 2010) (citation omitted);
see 42 U.S.C. § 1983.

Thus, to state a claim under 42 U.S.C §

1983, a plaintiff must sufficiently allege that (1) the defendant
deprived

him

of

a

right

secured

under

the

United

States

Constitution or federal law and (2) such deprivation occurred under
color of state law.

Bingham v. Thomas, 654 F.3d 1171, 1175 (11th

Cir. 2011) (per curiam) (citation omitted); Richardson v. Johnson,
598

F.3d

omitted).

734,

737

(11th

Cir.

2010)

(per

curiam)

(citations

In the absence of a federal constitutional deprivation

or violation of a federal right, a plaintiff cannot sustain a cause
of action under 42 U.S.C. § 1983.

Moreover, the Eleventh Circuit

However, in Randall v. Scott, 610 F.3d 701 (11th Cir. 2010), the
Eleventh Circuit determined that “[a]fter Iqbal it is clear that
there is no ‘heightened pleading standard’ as it relates to cases
governed by Rule 8(a)(2), including civil rights complaints.” See
Randall, 610 F.3d at 707-10. In light of this Eleventh Circuit
precedent and because Defendants do not assert that the heightened
pleading standard applies, the Court will apply the standard of
review set forth in Twombly and Iqbal.
Id. at 710; see also
Nettles v. City of Leesburg Police Dep’t, 415 F. App’x 116, 120-21
(11th Cir. 2010) (unpublished); but see Harper v. Lawrence Cnty.,
Ala., 592 F.3d 1227, 1233 (11th Cir. 2010) (applying the heightened
pleading standard post-Iqbal); Keating v. City of Miami, 598 F.3d
753, 762-63 (11th Cir. 2010) (same).
- 8 -

“‘requires proof of an affirmative causal connection between the
official’s

acts

or

omissions

and

the

alleged

constitutional

deprivation’ in § 1983 cases.” Rodriguez v. Sec’y, Dep’t of Corr.,
508 F.3d 611, 625 (11th Cir. 2007) (quoting Zatler v. Wainwright,
802 F.2d 397, 401 (11th Cir. 1986)).

More than conclusory and

vague allegations are required to state a cause of action under 42
U.S.C. § 1983.

See L.S.T., Inc. v. Crow, 49 F.3d 679, 684 (11th

Cir. 1995) (per curiam); Fullman v. Graddick, 739 F.2d 553, 556-57
(11th Cir. 1984).
As previously stated, Lloyd asserts that Baker violated his
Fourth Amendment rights by conspiring with Judge Foster to hold him
in the Jail.

However, Lloyd has failed to state a claim under 42

U.S.C. §§ 1983 or 1985.

The Eleventh Circuit has stated:

Conspiring
to
violate
another
person’s
constitutional rights violates section 1983.
Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct.
183, 186 (1980); Strength v. Hubert, 854 F.2d
421, 425 (11th Cir. 1988), overruled in part
on other grounds by Whiting v. Traylor, 85
F.3d 581, 584 n.4 (11th Cir. 1996).
To
establish a prima facie case of section 1983
conspiracy, a plaintiff must show, among other
things, that the defendants “reached an
understanding to violate [his] rights.”
Strength, 854 F.2d at 425 (quotation omitted).
The plaintiff does not have to produce a
“smoking gun” to establish the “understanding”
or “willful participation” required to show a
conspiracy, Bendiburg v. Dempsey, 909 F.2d
463, 469 (11th Cir. 1990), but must show some
evidence of agreement between the defendants.
Bailey v. Bd. of County Comm’rs of Alachua
County, 956 F.2d 1112, 1122 (11th Cir. 1992)

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(“The linchpin for conspiracy is agreement,
which presupposes communication.”).
Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283-84 (11th Cir.
2002).
Lloyd’s Complaint is devoid of any substantive allegation of
an agreement or communication between Judge Foster and Defendant
Baker related to any agreement to unjustly hold him in the Jail.
Lloyd fails to allege either actionable wrong or any evidence of
agreement to violate his federal constitutional rights.

Although

Judge Foster was properly dismissed based on judicial immunity,5
Lloyd correctly points out that Baker, even as a private attorney,
can be liable under § 1983 for conspiring with Judge Foster, even
though Judge Foster is immune.

Dennis v. Sparks, 449 U.S. 24, 27-

28, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980);

Pierre v. City

of Miramar, Florida, Inc., 537 F. App’x 821, 827 (11th Cir. 2013)
(per curiam); Cox v. Mills, 465 F. App’x 885, 887 (11th Cir. 2012);
Lloyd v. Card, 283 F. App’x 696, 700 (11th Cir. 2008) (per curiam)

5

See Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000)
(holding that judges are absolutely immune for acts taken while
acting in their judicial capacity so long as they are not done in
clear absence of all jurisdiction); Simmons v. Conger, 86 F.3d
1080, 1084-85 (11th Cir. 1996) (same); Stump v. Sparkman, 435 U.S.
349, 356 (1978) (holding that judicial immunity applies even if the
judge’s acts are in error, malicious, or were in excess of his
jurisdiction); Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991)
(citations omitted) (holding that conducting judicial proceedings
and performing judicial duties are absolutely immune from suit);
Lloyd v. Foster, 298 F. App’x 836 (11th Cir. 2008) (affirming that
similar claims made by Lloyd against Judge Foster failed to state
a claim).
- 10 -

(affirming summary judgment of similar claims brought by Lloyd).
However, Lloyd’s claim against Baker nevertheless fails because he
has only provided formulaic recitations and conclusory allegations
of a conspiracy.

Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir.

1992) (Plaintiff “must plead in detail, through reference to
material facts, the relationship or nature of the conspiracy
between the state actor(s) and the private persons.”).

Lloyd

simply fails to present allegations of any agreement to violate his
rights.

Rowe, 279 F.3d at 1284.

To establish a violation of § 1985(3), a plaintiff must show:
(1) a conspiracy; (2) for the purpose of
depriving a person or class of persons of the
equal protection of the laws, or of equal
privileges and immunities under the laws; and
(3) an act in furtherance of the conspiracy
(4) resulting in an injury to a person or
property, or a deprivation of any right or
privilege of a citizen of the United States.
Childree v. UAP/GA AG CHEM, Inc., 92 F.3d
1140, 1146-47 (11th Cir. 1996).
Pace v. Peters, 524 F. App’x 532, 536 (11th Cir. 2013) (per
curiam).

Because Lloyd does not assert a class-based invidiously

discriminatory animus, any conspiracy claims under § 1985(3) also
fail. See Santillana v. Fla. State Court System, 450 F. App’x 840,
844 (11th Cir. 2012) (“To prove the second element, the plaintiff
must show that the deprivation of rights or privileges occurred as
a result of ‘some racial, or ... otherwise class-based, invidiously
discriminatory

animus

behind

the

- 11 -

conspirators’

actions.’”)

(citation

omitted).

Further,

“conclusory

allegations

of

discrimination and conspiracy, without more, are not sufficient to
support a § 1985 claim.”

Id. (citation omitted).

Therefore, it is now
ORDERED:
1.

Defendant Gary Baker’s Motion to Dismiss (Doc. #32) is

GRANTED.
2.

Defendant Gary Baker is DISMISSED as a Defendant in this

action.
3.

The Clerk shall enter judgment in favor of all Defendants

and against Plaintiff Orvel Winston Lloyd, terminate any pending
motions, and close this case.
DONE AND ORDERED at Jacksonville, Florida this 16th day of
September, 2015.

tc 9/2
c:
Orvel Winston Lloyd
Counsel of Record
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