Freeman v. Florida Department of Professional Regulation et al

Filing 37

ORDER denying as moot 31 Motion to Dismiss for Failure to State a Claim; granting 33 motion to dismiss, Motion to Dismiss for Failure to State a Claim and Motion to dismiss for lack of jurisdiction; granting 34 Motion to Dismiss for Failure to State a Claim and Motion to dismiss for lack of jurisdiction. Plaintiff may file an Amended Complaint on or before August 8, 2014. Signed by Judge Roy B. Dalton, Jr. on 7/18/2014. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HAROLD WAYNE FREEMAN,
Plaintiff,
v.

Case No. 6:14-cv-333-Orl-37DAB

FLORIDA DEPARTMENT OF
PROFESSIONAL REGULATION;
FLORIDA DIVISION OF A LCOHOLIC
BEVERAGE AND TOBACCO;
METROPOLITAN BUREAU OF
INVESTIGATION; JOSH MOYER;
CYNTHIA HILL; ELLEN CRABILL;
TOCKAY LAOCHAREUM; MURTICE
TUCKER; RAFAEL BERRIOS; and
URIEL ORTIZ,
Defendants.
ORDER
This cause is before the Court on the following:
1.

Defendant, Metropolitan Bureau of Investigation’s Second Dispositive –
Motion to Dismiss (Doc. 31), filed June 2, 2014;

2.

Defendants, Florida Department of Professional Regulation and Florida
Division of Alcoholic Beverages and Tobacco’s, Motion to Dismiss and
Memorandum of Law in Support Thereof (Doc. 33), filed June 26, 2014;

3.

Defendant, Metropolitan Bureau of Investigation’s Second Dispositive –
Motion to Dismiss (Doc. 34), filed June 26, 2014;

4.

Plaintiff, Harold Freeman’s, Motion to Deny Defendant[‘]s Motion to
Dismiss (Doc. 35), filed July 11, 2014; and

5.

Plaintiff, Harold Freeman’s, Amended Motion to Deny Defendant[‘]s
Motion to Dismiss (Doc. 36), filed July 14, 2014.

Upon consideration, the Court finds that the motions to dismiss are due to be granted.
BACKGROUND
On June 6, 2014, Harold Wayne Freeman (“Plaintiff”) filed his pro se Amended
Complaint 1 against the Florida Department of Professional Regulation (“FDPR”), the
Florida Division of Alcoholic Beverage and Tobacco (“FDABT”), the Metropolitan Bureau
of Investigation (“MBI”), Josh Moyer, Cynthia Hill, Ellen Crabill, Tockay Laochareum,
Murtice Tucker, Rafael Berrios, and Uriel Ortiz (collectively “Defendants”). (Doc. 32.)
Plaintiff alleges that on March 8, 2010, his beverage license was permanently
revoked by FDABT. (Id. ¶ 1.) Plaintiff contends that during the administrative proceedings
to revoke said license, Defendants made false statements and filed false reports. (Id. at
6-16.) Plaintiff alleges that the “Defendants have never proven any of the allegations by
clear and convincing evidence,” and they had “no right to or authority to revoke his
beverage license.” (Id. ¶ 73.)
Although the format and substance of the Complaint is very confusing, it appears that
Plaintiff may be attempting to assert claims of: (1) “Fraud Upon the Court” (id. at 18); (2)
“Discrimination” (id. at 19); (3) “Malicious Prosecution” (id. at 21); (4) “Conspiracy” (id.); (5)

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On March 31, 2014, MBI moved to dismiss Plaintiff’s first Complaint based on
improper service (Doc. 11), and the Court granted MBI’s motion on April 24, 2014. The
Court ordered Plaintiff to properly serve MBI by June 30, 2014 (id.), and Plaintiff complied.
(Doc. 30). On April 8, 2014, FDABT and FDPR moved to dismiss Plaintiff’s first Complaint
based on several grounds including, failure to state a claim under Rule 8 of the Federal
Rules of Civil Procedure (Doc. 17), and the Court granted the motion on May 16, 2014
(Doc. 29). The Court allowed Plaintiff to file an Amended Complaint on or before June 6,
2014. (Id.)

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“Gross Negligence” (id. at 22); and (6) violations of “Plaintiff’s rights not to be subjected to
unreasonable seizure, their right to liberty, their right to due process of law and their [sic] right
to equal protection of the laws” as guaranteed by the United States and Florida Constitutions
(id. ¶ 18–21). FDPR, FDABT, and MBI move to dismiss the Amended Complaint. (Doc. 33,
34.) Plaintiff filed responses (Docs. 35, 36), and the motion is ripe for adjudication.

STANDARDS
A complaint must contain “a short and plain statement of the claim showing the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In deciding a motion to dismiss a
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all
factual allegations in a complaint as true and take them in the light most favorable to the
plaintiff. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir. 2009).
“Factual allegations must be enough to raise a right to relief above the speculative level
. . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
The Court also recognizes that Plaintiff is proceeding in this matter pro se. In
reviewing the SAC, the Court applied the “liberal construction to which pro se pleadings
are entitled.” Holsomback v. White, 133 F.3d 1382, 1386 (11th Cir. 1998). However,
liberal construction cannot serve as a substitute to establishing a cause of action. See
GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (holding
that while courts should show leniency to pro se litigants, “this leniency does not give a

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court license to serve as de facto counsel for a party . . . or to rewrite an otherwise
deficient pleading in order to sustain an action”).
DISCUSSION
FDPR, FDABT, and MBI move to dismiss the Amended Complaint on the grounds
that: (1) they are immune from suit under the Eleventh Amendment; (2) Plaintiff is not a
proper plaintiff; (3) Plaintiff’s claims are barred by the statute of limitations; and (4) Plaintiff
fails to state any claim under showing that he is entitled to relief. (Docs. 33, 34.) MBI and
FDBAT also argue that they are not separate legal entities that can be properly sued. (Id.)
Further, FDBAT and FDPR argue that the Court lacks subject matter jurisdiction of
Plaintiff’s claims, under the Rooker-Feldman doctrine. (Doc. 33, pp 6–7.) Although many
of these arguments appear to have merit, the Court will resolve the motion only on the
ground that the Amended Complaint fails to satisfy the requisite pleading standards.
As currently pled, the complaint lacks sufficient facts from which a cognizable
cause of action can be inferred. When stating his claims, Plaintiff makes disjointed and
confusing allegations mixed with conclusory facts and statements of the law, which are
generally incoherent. (Doc. 32, ¶¶ 18–22.) Furthermore, as argued by FDABT, FDPR,
and MBI, the Plaintiff sets forth a confusing factual narrative, makes sweeping assertions,
and groups alleged violations in a manner that is not in accordance with Rule 10(b).2
(Doc. 34, pp. 2–3; Doc. 33, p. 15.)

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Rule 10 requires that a “party state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set of circumstances” and further
that “each claim founded on a separate transaction or occurrence . . . be stated in a
separate count.” Fed. R. Civ. P. 10(b).

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Plaintiff’s addition of several defendants 3 in the Amended Complaint creates more
confusion because it is virtually impossible to know which allegations of fact are intended
to support which claims for relief, or which defendant the claim is directed towards. The
primary purpose of the pleading requirements under Rule 8 is to provide a defendant with
adequate notice which will enable the adverse party to answer and prepare for trial. Alford
v. Consol. Gov't of Columbus, Ga., 438 F. App'x 837, 838 (11th Cir. 2011). The Court
finds that even by the liberal standards for notice pleading and for pro se complaints, the
Amended Complaint is insufficient to provide the Defendants with fair notice of Plaintiff’s
claims. Thus, the Court will grant the motions to dismiss filed by MBI, FDABT, and FDPR.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Defendant, Metropolitan Bureau of Investigation’s Second Dispositive –
Motion to Dismiss (Doc. 31) is DENIED AS MOOT. Plaintiff, Harold
Freeman, filed an Amended Complaint. The only issues before the Court
are the ones raised in the Amended Complaint

2.

Defendants, Florida Department of Professional Regulation and Florida
Division of Alcoholic Beverages and Tobacco’s, Motion to Dismiss and
Memorandum of Law in Support Thereof (Doc. 33) is GRANTED.

3.

Defendant, Metropolitan Bureau of Investigation’s Second Dispositive –
Motion to Dismiss (Doc. 34) is GRANTED.

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Josh Moyer, Cynthia Hill, Ellen Crabill, Tockay Laochareum, Murtice Tucker,
Rafael Berrios, and Uriel Ortiz were all named in Plaintiff’s Amended Complaint as
defendants in their official and/or individual capacity. (Doc 32, pp. 3–4.)

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4.

Plaintiff’s Amended Complaint (Doc. 32) is DISMISSED WITHOUT
PREJUDICE.

5.

Plaintiff may file an Amended Complaint on or before August 8, 2014.

6.

If Plaintiff fails to timely file an Amended Complaint in accordance with the
requirement of this Order, this action will be CLOSED.

DONE AND ORDERED in Chambers in Orlando, Florida, on July 18, 2014.

Copies:
Counsel of Record
Harold Wayne Freeman

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