Patterson v. Orlando-Orange County et al

Filing 137

ORDER granting in part 108 Motion to Dismiss for Failure to State a Claim; Counts I, III, IV, V, VII, VIII, and IX of the Amended Complaint (Doc. 83) are DISMISSED with prejudice. Counts II and VI of the Amended Complaint (Doc. 83) are DISMI SSED without prejudice. On or before June 18, 2019, Plaintiff may file a Second Amended Complaint addressing only Counts II and VI against Defendant Orange County. Adopting Report and Recommendations - re 132 Report and Recommendations.. Signed by Judge Carlos E. Mendoza on 5/30/2019. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

DIMITRI PATTERSON,
Plaintiff,
v.

Case No: 6:18-cv-950-Orl-41GJK

ORLANDO-ORANGE COUNTY,
Defendant.
/
ORDER
THIS CAUSE is before the Court on Defendant, Orange County, Florida’s Motion to
Dismiss (Doc. 108). United States Magistrate Judge Gregory J. Kelly issued a Report and
Recommendation (Doc. 132), recommending that the Motion be granted in part. Specifically,
Judge Kelly recommended that Counts I, IV, V, VII, VIII, and IX of the Amended Complaint
(Doc. 83) be dismissed with prejudice, the remainder of the Amended Complaint be dismissed
without prejudice, and Plaintiff be given leave to file a Second Amended Complaint against
Orange County. (Doc. 132 at 14).
Defendant filed an Objection to the Report and Recommendation (Doc. 134). Therein,
Defendant argues that all of Plaintiff’s claims should be dismissed with prejudice because
Plaintiff’s Amended Complaint fails to state a claim. With respect to Plaintiff’s Fifth Amendment
claim, the Court agrees. Plaintiff cannot assert a claim against Defendant under the Fifth
Amendment because Defendant is a state entity. See Riley v. Camp, 130 F.3d 958, 972 n.19 (11th
Cir. 1997) (“The Fifth Amendment obviously does not apply here–the acts complained of were
committed by state rather than federal officials.”). Therefore, Plaintiff’s Fifth Amendment claim,
Count III, will be dismissed with prejudice. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.

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2001) (“A district court need not, however, allow an amendment [of the complaint] . . . where
amendment would be futile.”).
As for Plaintiff’s remaining claims against Defendant, Counts II and VI, the Court does
not find that amendment would to be futile. Plaintiff will be granted an opportunity to amend his
Complaint as Counts II and VI. After a de novo review, the Court agrees with the analysis in the
Report and Recommendation, with the exception of granting Plaintiff leave to amend Count III.
Accordingly, it is ORDERED and ADJUDGED as follows:
1. To the extent that it is consistent with this Order, the Report and Recommendation
(Doc. 132) is ADOPTED and CONFIRMED and made a part of this Order.
2. Defendant, Orange County, Florida’s Motion to Dismiss (Doc. 108) is GRANTED
in part.
3. Counts I, III, IV, V, VII, VIII, and IX of the Amended Complaint (Doc. 83) are
DISMISSED with prejudice.
4. Counts II and VI of the Amended Complaint (Doc. 83) are DISMISSED without
prejudice.
5. On or before June 18, 2019, Plaintiff may file a Second Amended Complaint
addressing only Counts II and VI against Defendant Orange County. Failure to do
so may result in the dismissal of this case without further notice.
DONE and ORDERED in Orlando, Florida on May 30, 2019.

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Copies furnished to:
Counsel of Record
Unrepresented Party

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