Henning v. Day et al
ORDER overruling 88 Plaintiff's Objection to Report and Recommendation; adopting 87 the Magistrate Judge's June 28, 2017 Report and Recommendation; denying 83 Plaintiff's Motion for Default Judgment. Counts III and VIII of the Amended Complaint are dismissed without prejudice. Plaintiff has fourteen (14) days from the date of this Order to file a Second Amended Complaint. Signed by Judge Paul G. Byron on 8/9/2017. (SEN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 6:15-cv-927-Orl-40DCI
This cause comes before the Court on pro se Plaintiff’s Motion for Default
Judgment Against Jeremy Felty (Doc. 83), filed December 12, 2016. On June 28, 2017,
Magistrate Judge Daniel C. Irick submitted a report recommending that Plaintiff’s motion
be denied, that Plaintiff’s claims against Defendant be dismissed without prejudice, and
that Plaintiff be granted leave to amend those claims. On July 7, 2017, Plaintiff filed
written objections to the Magistrate Judge’s Report and Recommendation. This matter is
ripe for review.
On June 8, 2015, pro se Plaintiff, Bryan Henning (“Henning”), initiated this lawsuit
against a number of Defendants for torts they allegedly committed against him. Due to
settlements and dismissals, only one Defendant remains: Jeremy Felty (“Felty”). Henning
accuses Felty of assaulting him while Henning sat on a beach taking photographs.
Henning also claims that Felty committed slander per se by stating to others that Henning
is a pedophile. After being served with this lawsuit, Felty never responded or appeared.
As a result, the Clerk of Court entered default against Felty on December 1, 2016.
Henning now applies for a default judgment.
STANDARDS OF REVIEW
Review of Magistrate Judge’s Report and Recommendation
A district judge may designate a magistrate judge to hear and determine both
dispositive and non-dispositive matters. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a),
(b). When a magistrate judge has been designated to decide a matter that is dispositive
in nature, as is the case here, the magistrate judge must issue a report to the district judge
specifying the magistrate judge’s proposed findings of fact and recommended disposition.
Fed. R. Civ. P. 72(b)(1).
Any party who disagrees with the magistrate judge’s
recommended decision has fourteen days from the date of the recommendation to seek
the district judge’s review by filing objections to those specific portions of the
recommendation disagreed with. Fed. R. Civ. P. 72(b)(2). The district judge must then
make a de novo determination of each issue to which objection is made. Fed. R. Civ. P.
72(b)(3). De novo review “require[s] independent consideration of factual issues based
on the record.” Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (per
curiam). The district judge may then accept, reject, or modify the magistrate judge’s
recommendation, receive additional evidence or briefing from the parties, or return the
matter to the magistrate judge for further review. Fed. R. Civ. P. 72(b)(3).
Review of Motion for Default Judgment
“The mere entry of a default by the Clerk does not in itself warrant the entry of a
default judgment by the Court.” GMAC Commercial Mortg. Corp. v. Maitland Hotel
Assocs., Ltd., 218 F. Supp. 2d 1355, 1359 (M.D. Fla. 2002). Instead, before entering
default judgment, the Court must ensure that it has jurisdiction over the claims and parties,
and that the well-pled factual allegations of the complaint, which are deemed to be
admitted by virtue of the defendant’s default, adequately state a claim for relief. See
Nishimatsu Constr. Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). 1 If the
facts alleged in the complaint do not state a claim for relief against the defendant, a default
judgment cannot be awarded. Id.
Review of Pro Se Party’s Pleadings and Motions
The Court has a duty to liberally construe a pro se plaintiff’s filings and to afford
greater leeway in alleging a claim for relief than what is given to licensed attorneys.
Tennyson v. ASCAP, 477 F. App’x 608, 609–10 (11th Cir. 2012) (per curiam).
Nevertheless, “a pro se party must follow the rules of procedure and evidence, and the
district court has no duty to act as [a pro se party’s] lawyer.” Id. at 610 (internal quotation
marks omitted). Moreover, the Court may not “rewrite an otherwise deficient pleading in
order to sustain an action” for a pro se party. GJR Invs., Inc. v. Cty. of Escambia, 132 F.3d
1359, 1369 (11th Cir. 1998), overruled on other grounds as recognized by Randall v.
Scott, 610 F.3d 701 (11th Cir. 2010).
Henning objects to the Magistrate Judge’s findings that Henning failed to state
claims for assault and slander per se against Felty and that Henning should only be
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth
Circuit that were handed down prior to October 1, 1981.
permitted to amend his complaint to re-assert these claims. 2 The Court addresses
Henning’s objections in turn.
Count III: Slander Per Se
First, the Magistrate Judge determined that the facts alleged in Henning’s
Amended Complaint fail to state a claim for slander per se. The Magistrate Judge found
that Henning fails to provide facts demonstrating that the slanderous statement made by
Felty is false. 3 Henning objects, arguing that the Amended Complaint sufficiently states
a claim for slander per se.
As part of stating a claim for slander per se in Florida, a plaintiff must establish that
the slanderous statement made by the defendant is false. See Bass v. Rivera, 826 So.
2d 534, 535 (Fla. Dist. Ct. App. 2002). After reviewing Henning’s Amended Complaint,
the undersigned agrees with the Magistrate Judge that, while Henning alleges that Felty
made statements to others that Henning is a pedophile and that these statements are
presumably slanderous, Henning does not allege that these statements are false.
Henning therefore fails to state a claim against Felty for slander per se.
Count VIII: Assault
Next, the Magistrate Judge determined that the facts alleged in Henning’s
Amended Complaint fail to state a claim for assault. The Magistrate Judge found that
Henning also objects to the Magistrate Judge’s finding that Henning failed to establish
his entitlement to the damages he seeks. However, because the Court finds that
Henning fails to state a claim against Felty, it is not necessary for the Court to reach
The Magistrate Judge also found that Henning fails to allege facts identifying Felty as
the person who uttered the allegedly slanderous statement, but that this deficiency is
not necessarily fatal to Henning’s claim.
Henning fails to allege facts identifying Felty as the person who assaulted him. Henning
objects, contending that the Amended Complaint sufficiently states a claim for assault.
To state a claim for assault in Florida, a plaintiff must establish that the defendant
(1) made an intentional, unlawful threat of violence, (2) appeared to have the ability to
carry out the threat, and (3) created a well-founded fear in the plaintiff that the violence
threatened was imminent. Cannon v. Thomas ex rel. Jewett, 133 So. 3d 634, 639 (Fla.
Dist. Ct. App. 2014). After reviewing Henning’s Amended Complaint, the undersigned
agrees with the Magistrate Judge that Henning alleges no fact indicating that Felty was
the person who assaulted Henning. The most Henning alleges is that Felty was part of a
larger group of people who confronted Henning at the beach, that an unidentified man
made threatening statements to Henning, and that a man named Raymond Day rushed
at Henning and stood over him menacingly. (Am. Compl. ¶¶ 19, 26, 30, 33, 60). These
facts are insufficient to state a claim for assault against Felty.
Leave to Amend to Add Conspiracy Claims
Lastly, Henning objects to the Magistrate Judge’s recommendation that he only be
permitted to amend his complaint to re-allege his slander per se and assault claims.
Henning states that he wants to include one or more conspiracy claims against Felty and
the other Defendants to this case who have been dismissed.
In general, the Court should freely grant leave for a plaintiff to amend his complaint
when justice so requires. Fed. R. Civ. P. 15(a)(2). However, the Court may deny leave
to amend when it finds that the proposed claim would be futile. Bryant v. Dupree, 252
F.3d 1161, 1163 (11th Cir. 2001) (per curiam) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)). A claim is futile when the plaintiff “provide[s] no reason for the district court to
believe that he could offer sufficient allegations to make a claim for relief plausible on its
face.” Patel v. Ga. Dep’t BHDD, 485 F. App’x 982, 983 (11th Cir. 2012) (per curiam).
The Court finds that Henning’s proposed conspiracy claims would be futile. In
Florida, a conspiracy claim requires more than one party. Kurnow v. Abbott, 114 So. 3d
1099, 1102 & n.4 (Fla. Dist. Ct. App. 2013). Except for Felty, all of the parties who
Henning wishes to include in his proposed conspiracy claims have been dismissed from
this action. 4 Since a conspiracy claim cannot stand with just one party, Henning would
therefore be unable to state a claim for relief. The Court will consequently limit Henning
to amending his slander per se and assault claims against Felty.
For the aforementioned reasons, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff’s Objection to Report and Recommendation (Doc. 88) is
2. The Magistrate Judge’s June 28, 2017 Report and Recommendation
(Doc. 87) is ADOPTED AND CONFIRMED and made a part of this Order.
3. Plaintiff’s Motion for Default Judgment Against Jeremy Felty (Doc. 83) is
DENIED. Plaintiff’s claims against Defendant Jeremy Felty—Counts III and
VIII of the Amended Complaint—are DISMISSED WITHOUT PREJUDICE.
4. Plaintiff is granted leave to file a Second Amended Complaint to re-allege
his assault and slander per se claims against Defendant. Plaintiff’s request
Henning’s decision to settle with the other now-dismissed Defendants is of no
consequence to the Court’s analysis. Parties to litigation, whether represented by
counsel or proceeding pro se, are responsible for their own tactical decisions, and the
Court normally does not interfere with a party’s decision to settle his claims.
for leave to add additional claims is DENIED.
5. Plaintiff has fourteen (14) days from the date of this Order to file his Second
Amended Complaint. Plaintiff’s failure to file a Second Amended Complaint
by this date will result in the Court dismissing this case without prejudice
and without further notice for lack of prosecution.
DONE AND ORDERED in Orlando, Florida on August 9, 2017.
Copies furnished to:
The Honorable Magistrate Judge
Counsel of Record
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