Petrano et al v. Labarga et al

Filing 7

ORDER denying as moot 2 Motion for Leave to Proceed in forma pauperis; Denying as moot 3 Motion for Leave to Proceed in forma pauperis; To the extent they elect to amend their pleading, Plaintiffs may also file renewed applications on or before July 13, 2016. Adopting in part and rejecting in part Report and Recommendations - re 4 Report and Recommendations. Plaintiffs' Complaint (Doc. 1) is DISMISSED without prejudice. Plaintiffs' claims against Defendants Jorge L abarga, Ricky Polston, Barbara J. Pariente, R. Fred Lewis, Peggy A. Quince, Charles T. Canady, James E.C. Perry, George Richard Singeltary, James K. Fisher, Maritza Arroyo, Robert P. Groeb, and Trevor T. Rhodes are DISMISSED with prejudice and the Cl erk is directed to terminate these defendants as parties in this case and to amend the case style accordingly. On or before July 8, 2016, Plaintiffs may file an amended complaint that is consistent with the directives in this Order, the Federal Rules of Civil Procedure, and the Local Rules of the Middle District of Florida. Signed by Judge Carlos E. Mendoza on 6/29/2016. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

DAVID F. PETRANO and MARY
KATHERINE DAY-PETRANO,
Plaintiff,
v.

Case No: 6:15-cv-01046-Orl-41KRS

CHIEF JUSTICE JORGE LABARGA, et
al.,
Defendant.
/
ORDER
THIS CAUSE is before the Court on Plaintiffs David F. Petrano and Mary Katherine DayPetrano’s Applications to Proceed in District Court Without Prepaying Fees and Costs (“Motion
to Proceed,” Doc. Nos. 2, 3), which this Court construes as motions for leave to proceed in forma
pauperis. On September 4, 2015, United States Magistrate Judge Karla R. Spaulding submitted a
Report and Recommendation (“R&R,” Doc. 4), in which she recommends that the Complaint
(Doc. 1) be dismissed with prejudice. Plaintiffs objected to the R&R. (Objs., Doc. Nos. 5, 6). After
an independent de novo review of the record, the R&R will be adopted in part and rejected in part.
I.

LEGAL STANDARD

Pursuant to 28 U.S.C. § 636(b)(1), when a party makes a timely objection, the Court shall
review de novo any portions of a magistrate judge’s report and recommendation concerning
specific proposed findings or recommendations to which an objection is made. See also 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. of State of Ga., 896 F.2d 507, 513 (11th Cir. 1990) (per

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curiam). The district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
II.

ANALYSIS

In the R&R, Judge Spaulding recommends that the Complaint be dismissed with prejudice
on the following grounds: (1) the Younger doctrine; (2) the Rooker-Feldman doctrine; (3)
Plaintiffs’ failure to comply with the minimum pleading requirements; and (4) the proscription
against individual liability under Title II of the Americans with Disabilities Act (“ADA”). (R&R
at 5–7).
A.

The Younger Abstention Doctrine

With respect to any claims arising out of Mr. Petrano’s disciplinary proceedings before the
Florida Bar, the Court must abstain from entertaining Plaintiffs’ claims pursuant to the Younger
abstention doctrine. The Younger abstention doctrine enjoins federal courts from interfering with
pending state proceedings “when the moving party has an adequate remedy at law and will not
suffer irreparable injury if denied equitable relief.” Younger v. Harris, 401 U.S. 37, 43–44 (1971).
While Younger emanated from the context of state criminal proceedings, the Supreme Court has
applied the Younger abstention doctrine “to bar a federal court from entertaining a lawyer’s
challenge to a . . . state ethics committee’s pending investigation of the lawyer.” Sprint Commc’ns,
Inc. v. Jacobs, 134 S. Ct. 584, 593 (2013) (citing Middlesex Cty. Ethics Comm. v. Garden State
Bar Ass’n, 457 U.S. 423, 433–35 (1982)); cf. Am. Civil Liberties Union v. Fla. Bar, 999 F.2d 1486,
1493 n.15 (11th Cir. 1993) (“Younger applies to state disciplinary proceedings because they are
‘judicial in nature.’” (quoting Middlesex, 457 U.S. at 433–34)). Furthermore, the Court should
only abstain where—(1) the state proceeding “constitute[s] an ongoing state judicial proceeding”;
(2) “the proceedings implicate important state interests”; and (3) “there [is] an adequate

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opportunity in the state proceedings to raise constitutional challenges.” 31 Foster Children v. Bush,
329 F.3d 1255, 1274 (11th Cir. 2003) (quoting Middlesex, 457 U.S. at 432).
As to the first prong, this case remains ongoing. When the R&R was issued in this case,
Judge Spaulding appropriately recommended that the Court abstain from exercising jurisdiction
over Plaintiffs’ suit as Mr. Petrano’s disciplinary proceedings were still ongoing in state court.
However, the Court subsequently learned that the Florida Supreme Court disbarred Mr. Petrano
from the practice of law in February 2016. Nevertheless, Mr. Petrano has now filed a petition for
a writ of certiorari in the United States Supreme Court with respect to those proceedings. “A state’s
trial and appeals process is considered a unitary system, and Younger prevents a federal court from
disrupting the process while a case is on appeal.” Redner v. Citrus Cty., 919 F.2d 646, 649 (11th
Cir. 1990) (quotation omitted). Thus, the proceedings remain ongoing while Mr. Petrano’s appeal
is pending.
The first prong “also requires that the federal relief the plaintiffs seek would interfere with
those proceedings.” 31 Foster Children, 329 F.3d at 1275. Plaintiffs request, among other forms
of relief, that various Florida professional ethics rules, namely those under which Mr. Petrano was
found guilty, be declared unconstitutional, an order enjoining the prosecution and implementation
of discipline against Mr. Petrano, and that the Florida Bar’s attorney discipline program be
suspended. It should suffice to say that the grant of any such relief would substantially and directly
interfere with the state court’s proceedings. 1

1

Plaintiffs also appear to seek monetary damages. “If Younger abstention applies to a claim
for monetary damages, the Supreme Court has concluded that a district court can only stay that
claim if it cannot be redressed in the state proceeding, and it has no discretion to dismiss those
claims.” Watson v. Fla. Judicial Qualifications Comm’n, 618 F. App’x 487, 491 (11th Cir. 2015)
(per curiam). Nevertheless, as noted in the R&R and this Order, Plaintiffs’ Complaint is due to be
dismissed in its entirety as an improper shotgun pleading. Thus, the Court declines to address the
implications of any possible claims for monetary relief at this time.
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The second factor is also satisfied. It requires that the state proceedings implicate
“important state interests,” which include “[p]roceedings necessary for the vindication of
important state policies or for the functioning of the state judicial system.” Middlesex, 457 U.S. at
432. Here, the Florida Bar proceedings involve “maintaining and assuring the professional conduct
of the attorneys it licenses,” id. at 434, which, according to the Supreme Court, is sufficiently
important, see id.; Thompson v. Fla. Bar, 526 F. Supp. 2d 1264, 1275 (S.D. Fla. 2007); cf. Fla.
Bar v. Went For It, Inc., 515 U.S. 618, 625 (1995) (“[W]e have little trouble crediting the [Florida]
Bar’s interest [in regulating its attorneys] as substantial.”).
Finally, Plaintiffs have not shown that there was not an adequate opportunity to raise their
federal claims in the state proceedings. See 31 Foster Children, 329 F.3d at 1279 (“[T]he plaintiffs
have the burden of establishing that the state proceedings do not provide an adequate remedy for
their federal claims.”). Although Plaintiffs make ample complaints about the accommodations that
were provided by Defendants in the disciplinary proceedings, they have not demonstrated that they
were procedurally prevented from raising their disability claims in those proceedings. See Davis
v. Self, 547 F. App’x 927, 931 (11th Cir. 2013) (per curiam) (“[W]hether a claim would likely be
successful on the merits in the state court is not what matters. Instead, what matters is whether the
plaintiff is procedurally prevented from raising his constitutional claims in the state courts.”
(quotation omitted)). To the contrary, Plaintiffs allege in the Complaint that they did in fact raise
issues concerning reasonable accommodation in the disciplinary proceedings. Accordingly,
Plaintiffs have not shown a structural barrier to raising their claims in the state proceedings and
the third prong is satisfied.
Although Mrs. Day-Petrano was not a party to the Florida Bar proceedings, “the mere fact
that a plaintiff in a federal court action is not a party to the state proceeding which he asks a federal

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court to enjoin is not a ground for rejecting [the] Younger abstention [doctrine].” Kuhn v.
Thompson, 304 F. Supp. 2d 1313, 1325 (M.D. Ala. 2004); see also News-Journal Corp. v. Foxman,
939 F.2d 1499, 1511 (11th Cir. 1991) (applying the Younger abstention doctrine to a non-party to
the state proceeding because granting the requested relief would interfere with the state
proceeding). Specifically, Courts have recognized the use of the Younger abstention doctrine
against third parties where that party’s interests are substantially intertwined with the party to the
state court proceeding, the requested relief would interfere with the state court proceeding, and the
third party has not made a clear showing that its rights could not be vindicated in the state
proceeding. See Hicks v. Miranda, 422 U.S. 332, 348–49 (1975). Here, Plaintiffs do not distinguish
between their alleged injuries or the requested relief. Thus, their interests are aligned, and, for the
reasons already stated, the relief Mrs. Day-Petrano seeks would interfere with the state
proceedings. Additionally, as noted, Mrs. Day-Petrano has not met her burden of showing that she
could not vindicate her rights in the state proceeding. Therefore, the Younger abstention doctrine
is properly applied to her claims arising out of the disciplinary proceedings as well.
Accordingly, all claims arising out of the disciplinary proceedings currently pending
against Mr. Petrano are barred by the Younger abstention doctrine and are properly dismissed.
B.

The Rooker-Feldman Doctrine

The Court declines to adopt Judge Spaulding’s findings with respect to the RookerFeldman doctrine. The Rooker-Feldman doctrine prevents federal district courts from reviewing
state court final judgments. Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009) (per curiam).
However, the doctrine is confined to “cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic

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Indus. Corp., 544 U.S. 280, 284 (2005); Nicholson v. Shafe, 558 F.3d 1266, 1274 (11th Cir. 2009).
Moreover, the party seeking relief in federal court must have had a reasonable opportunity to raise
its federal claims in the state court proceeding. Nicholson, 558 F.3d at 1272.
Although the Complaint is less than clear, Plaintiffs do appear to allege injuries arising
from state court proceedings other than the disciplinary proceedings against Mr. Petrano. In her
Objection, Mrs. Petrano further delineates such proceedings and represents that those cases were
pending at the time this case was filed. As noted, the Rooker-Feldman doctrine applies only to
federal actions “filed after the state proceedings have ended.” Id. at 1275. A cursory review of the
state court dockets for those cases reveals that at least some of those cases do appear to have been
pending at the time this lawsuit was filed. Although Judge Spaulding was without the benefit of
such information, based on this additional information the Court is unable to determine at this time
that the Rooker-Feldman doctrine can be properly applied to any of Plaintiffs’ claims.
Accordingly, the R&R’s recommendation for dismissal on these grounds will be rejected.
C.

Pleading Requirements

Under Rules 8 and 10 of the Federal Rules of Civil Procedure, a complaint must include
“a short and plain statement of the [pleader’s] claim,” which must be set forth in “numbered
paragraphs, each limited as far as practicable to a single set of circumstances.” See Fed. R.
Civ. P. 8(a), 10(b); see also Kabbaj v. Obama, 568 F. App’x 875, 879 (11th Cir. 2014) (per
curiam). In addition, each allegation within the complaint “must be simple, concise, and direct.”
Fed. R. Civ. P. 8(d).
As noted in the R&R, the Complaint falls woefully short of these minimum pleading
requirements. The most glaring defect is the prolixity of the Complaint, as it consists of sixty-eight
pages, eight counts, and nearly two-hundred paragraphs. (See generally Compl.). As currently

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pleaded, the Complaint is a far cry from “simple, concise, and direct,” or a “short and plain
statement of the claim[s]” as mandated under Rule 8. Instead, it is replete with needless repetition,
irrelevancies, and unsupported allegations that detract from Plaintiffs’ attempt to state a viable
claim. Moreover, even a cursory review of the Complaint reveals that each paragraph is not
“limited as far as practicable to a single set of circumstances,” as required under Rule 10(b).
Furthermore, while each count of the Complaint purports to identify the nature of the claim,
the allegations contained within each count are largely incoherent and have little to do with the
claim identified in the title. For instance, Count IV is labeled as a claim for “Retaliation in
Violation of 42 U.S.C. § 12203 Against Defendant Trevor Rhodes.” (Compl. at 57). However,
aside from Plaintiffs’ gratuitous use of the term “ADA,” and their recitation of the ADA statute,
Count IV is devoid of any allegations demonstrating that Trevor Rhodes retaliated against
Plaintiffs in violation of the ADA. (See id. at 57–58).
The Complaint is also a shotgun pleading, in that it is “replete with conclusory, vague, and
immaterial facts not obviously connected to any particular cause of action.” Weiland v. Palm Beach
Cty. Sheriff’s Off., 792 F.3d 1313, 1321–23 (11th Cir. 2015) (outlining four types of “shotgun”
complaints). As a result, the Court is faced the onerous, and likely hopeless, task of sifting through
the Complaint to determine which facts are relevant to each cause of action. The Eleventh Circuit
has warned that when cases are not “pled clearly and precisely” in accordance with the
requirements of Rules 8 and 10, “issues are not joined, discovery is not controlled, the trial court’s
docket becomes unmanageable, the litigants suffer, and society loses confidence in the court’s
ability to administer justice.” Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364,
367 (11th Cir. 1996).

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Plaintiffs’ objections to the R&R’s findings with respect to the inadequacy of their
Complaint are without merit. The federal pleading rules are based on an objective, not subjective,
standard. To the extent Plaintiffs wish to proceed with this litigation, it is incumbent upon them to
comply with at least the minimum pleading standards. See Albra v. Advan, Inc., 490 F.3d 826, 829
(11th Cir. 2007) (per curiam) (“[A]lthough [the courts] are to give liberal construction to the
pleadings of pro se litigants, we nevertheless have required them to conform to procedural rules.”
(quotation omitted)). Heeding the Eleventh Circuit’s warning, the Court will adopt the R&R and
will dismiss the Complaint. See Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997)
(explaining that shotgun complaints “are altogether unacceptable”).
Nevertheless, because it is not entirely clear whether Plaintiffs can state a cause of action
over which this Court would have jurisdiction, the Court will grant Plaintiffs leave to amend. To
the extent Plaintiffs elect to amend, the amended pleading should, at a minimum, clearly allege
who each Defendant is, how each specific Defendant allegedly violated Plaintiffs’ rights, and
precisely how Plaintiffs’ rights were allegedly violated. Plaintiffs should also clearly specify which
Defendant each claim is being brought against, and which Plaintiff is bringing the claim.
Additionally, Plaintiffs should state each factual allegation only once and in sufficient detail to
make its connection to this case clear. Any amended pleading must clearly delineate which factual
allegations are relevant to each claim; the inclusion of unnecessary allegations concerning the basis
of Plaintiffs’ state law cases is wholly unnecessary. Plaintiffs should also clearly differentiate
between the numerous lawsuits that have been filed. Finally, Plaintiffs should not make derogatory
and disparaging remarks about any Defendant. Such elementary name calling and ad hominem
attacks will not be tolerated.
D.

Other Considerations

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Although the Complaint is due to be dismissed based solely on the insufficiency of the
pleadings, the Court would be remiss if it did not address several issues relating to its jurisdiction
over Plaintiffs’ claims.
1.

Individual Liability

As Judge Spaulding correctly concluded, “Title II of the ADA does not permit individual
capacity suits.” Smith v. Rainey, 747 F. Supp. 2d 1327, 1340 (M.D. Fla. 2010); see also Rylee v.
Chapman, 316 F. App’x 901, 905 (11th Cir. 2009) (per curiam) (“By its terms, the ADA only
addresses discrimination by a ‘public entity.’”); Badillo v. Thorpe, 158 F. App’x 208, 211 (11th
Cir. 2005) (per curiam) (“[T]here is no individual capacity liability under Title II of the ADA.”
(citing Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001)).
Therefore, Plaintiffs’ Title II claims against Defendants in their individual capacities fail as a
matter of law and are due to be dismissed with prejudice.
Plaintiffs’ claims against several Defendants in their official capacities are also due to be
dismissed, as they are duplicative of their claims against the public entity itself. See Busby v. City
of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (per curiam) (approving dismissal of official
capacity defendants whose presence was merely redundant to naming the institutional defendant);
see also Clifton v. Ga. Merit Sys., 478 F. Supp. 2d 1356, 1362 (N.D. Ga. 2007) (dismissing official
capacity claims under the ADA where the employer was a named defendant). Defendants Justices
Labarga, Polston, Pariente, Lewis, Quince, Canady, and Perry are all officers of the Florida
Supreme Court, which is also named as a party to this lawsuit. Defendant Judge Groeb is an officer
of the Eighth Judicial Circuit, which is also a named party. Additionally, Defendants Fisher and
Arroyo are allegedly employed by Defendant, the Florida Bar. Thus, to the extent Plaintiffs purport

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to bring claims against these individuals in their official capacities, the claims are redundant and
due to be dismissed.
2.

Individual Immunity

Insofar as there remain claims against any individual Defendants involved in the
disciplinary proceedings, such claims are also subject to dismissal. Where, as here, members of a
state bar were acting as agents of the Florida Supreme Court, they “enjoy[] immunity for actions
taken during the course of their official duties.” Caffey v. Ala. Supreme Court, 469 F. App’x 748,
752 (11th Cir. 2012) (per curiam) (citing Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (per
curiam)). Here, Plaintiffs’ allegations as to Defendants Judge Singeltary, Judge Groeb, Fisher,
Arroyo, and Rhodes go to conduct undertaken during the course of their official duties. Thus, they
are immune.
3.

Eleventh Amendment Immunity

Defendants the Florida Bar, the Florida Supreme Court, and the circuit courts of Florida
are instrumentalities of the State of Florida. The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. Eleventh Amendment immunity extends
to “state agencies and other arms of the state,” which includes “state courts and state bars.”
Kaimowitz v. Fla. Bar, 996 F.2d 1151, 1155 (11th Cir. 1993) (per curiam) (quotation omitted).
There are “certain well-established exceptions to Eleventh Amendment immunity.” Ga.
Dep’t of Revenue v. Headrick (In re Burke), 146 F.3d 1313, 1317 (11th Cir. 1998). Specifically,
“a state may waive its Eleventh Amendment immunity” or “Congress can abrogate states’ Eleventh
Amendment immunity.” Id. Florida has not waived its immunity from suit under Title II of the

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ADA. However, the Supreme Court has held that “Title II [of the ADA] validly abrogates state
sovereign immunity” to the extent that it “creates a private cause of action for damages against the
States for conduct that actually violates the Fourteenth Amendment.” United States v. Georgia,
546 U.S. 151, 158–59 (2006). Simply put, whether Plaintiffs’ claims are barred by Florida’s
immunity under the Eleventh Amendment will depend on whether Plaintiffs can adequately state
a claim for a violation of their Fourteenth Amendment rights.
Here, Plaintiffs make several references to the Fourteenth Amendment throughout their
Complaint; however, Plaintiffs completely fail to allege facts demonstrating that Defendants
violated their constitutional rights. To the extent Plaintiffs file an amended pleading, Plaintiffs
must plead sufficient facts so that the Court can properly assess whether any remaining Defendants
are entitled to Eleventh Amendment immunity.
While the instructions given in this Order are not exhaustive, Plaintiffs are encouraged to
give appropriate thought to the allegations within any amended pleading, and are required to
conduct the necessary legal research before bringing a claim. If Plaintiffs file an amended pleading
that fails to meet at least the minimum standards set forth by the Federal Rules of Civil Procedure,
the Local Rules of the Middle District of Florida, and this Order, the Court may dismiss the
pleading without further leave to amend.
III.

CONCLUSION

Therefore, it is ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 4) is ADOPTED in part and made a part
of this Order to the extent consistent with that stated herein. In all other respects,
the R&R is REJECTED for the reasons stated herein.
2. Plaintiffs’ Complaint (Doc. 1) is DISMISSED without prejudice.

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3. Plaintiffs’ claims against Defendants Jorge Labarga, Ricky Polston, Barbara J.
Pariente, R. Fred Lewis, Peggy A. Quince, Charles T. Canady, James E.C. Perry,
George Richard Singeltary, James K. Fisher, Maritza Arroyo, Robert P. Groeb, and
Trevor T. Rhodes are DISMISSED with prejudice.
4. On or before July 8, 2016, Plaintiffs may file an amended complaint that is
consistent with the directives in this Order, the Federal Rules of Civil Procedure,
and the Local Rules of the Middle District of Florida. Failure to timely file an
amended pleading may result in the closure of this case without further notice.
5. Plaintiffs’ Applications to Proceed in District Court Without Prepaying Fees and
Costs (Doc. Nos. 2, 3) are DENIED as moot. To the extent they elect to amend
their pleading, Plaintiffs may also file renewed applications on or before July 13,
2016.
6. The Clerk is directed to terminate Defendants Jorge Labarga, Ricky Polston,
Barbara J. Pariente, R. Fred Lewis, Peggy A. Quince, Charles T. Canady, James
E.C. Perry, George Richard Singeltary, James K. Fisher, Maritza Arroyo, Robert P.
Groeb, and Trevor T. Rhodes as parties in this case and to amend the case style
accordingly.
DONE and ORDERED in Orlando, Florida on June 29, 2016.

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Copies furnished to:
Unrepresented Parties

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