Denico et al v. Florida State Fair Authority et al
Filing
52
ORDER: Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint 45 is GRANTED. Plaintiffs are granted leave to file an Amended Complaint by September 30, 2013. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 9/10/2013. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARK DENICO, THOMAS GRISWOLD
JR., TIMOTHY NEWBERRY, and
DENNIS WALSTED,
Plaintiffs,
v.
Case No. 8:12-cv-2933-T-33EAJ
FLORIDA STATE FAIR AUTHORITY,
BILL BULLOCK, individually and
officially, CHARLES PESANO,
individually and officially,
MAJOR AL GRECO, individually and
officially, and SHERIFF DAVID
GEE, individually and
officially,
Defendant.
______________________________/
ORDER
This cause is before the Court pursuant to Defendants’
Motion to Dismiss Plaintiffs’ Second Amended Complaint (Doc.
# 45), filed on June 19, 2013. Plaintiffs filed a Response in
Opposition to the Motion on July 9, 2013. (Doc. # 49).
The
Court grants the Motion and dismisses the Complaint without
prejudice and with leave to amend by September 30, 2013.
I.
Background
On February 7, 2010, Plaintiffs were directed to leave
the Florida State Fair because they were wearing motorcycle
attire adorned with patches, commonly referred to as “colors.”
(Doc. # 37 at ¶ 3).
As alleged in the Second Amended
Complaint, Plaintiffs Denico and Griswold are members of the
United States Military Vets Motorcycle Club and, on the day in
question, were wearing patches depicting an American flag, an
American eagle, and the word “Liberty.” (Id. at ¶¶ 17-18).
Similarly, Newberry and Walsted are members of the Spirit
Riders Motorcycle Ministry. (Id. at ¶¶ 19-20).
Newberry and
Walsted’s
a
attire
included
patches
depicting
Christian
crucifix, a crown, beams of light, wings, and two white doves.
(Id.).
Plaintiffs allege that “members of the Spirit Riders
Motorcycle Ministry, including Dennis Walsted, were going to
lead all the motorcyclists in prayer once inside the Fair.”
(Id. at ¶ 20).
Each named Plaintiff paid for admission to the Florida
State Fair on the date in question, however, “Plaintiffs were
told specifically by Defendant Major Al Greco and other
unknown members of the Hillsborough County Sheriff’s Office
that they would not be permitted to enter the Fair if they
refused to remove their vests with the ‘patches’ on the back
of them reflecting membership in the motorcycle club and
religious ministry.” (Id. at ¶ 24).
Plaintiffs also allege that Defendant Greco “informed the
Plaintiffs that the prohibition against allowing motorcyclists
with vests with ‘patches’ was the policy of the Florida State
Fair Authority and that he was exercising his power as law
2
enforcement
to
enforce
that
policy.”
(Id.
at
¶
25).
Plaintiffs allege that Defendant Gee “is the elected Sheriff
of the Hillsborough County Sheriff’s Department” and “is
responsible for setting policy for the Department . . . [and]
for the training, supervision and discipline of the employees
of the Hillsborough County Sheriff’s Department.” (Id. at
¶ 14).
As
for
Defendant
Pesano,
Plaintiffs
allege
that
he
“exercised his power as an employee of the Florida State Fair
by drafting and maintaining a policy prohibiting motorcyclists
from wearing their patch on the back of their vests to enter
the Fair.” (Id. at ¶ 27). Similarly, Plaintiffs allege that
Defendant Bullock “exercised his power as an employee of the
Florida State Fair Authority by enforcing the Florida State
Fair Authority’s policy” against motorcyclist patches. (Id. at
¶ 28).
In the operative Complaint, the Plaintiffs assert the
following twelve claims: count 1 against Bullock in his
official and individual capacity for violation of Plaintiffs’
First Amendment rights to freedom of expression; count 2
against Pesano in his official and individual capacity for
violation of Plaintiffs’ First Amendment rights to freedom of
expression; count 3 against Greco and Gee in their official
3
and individual capacities for violation of Plaintiffs’ First
Amendment rights to freedom of expression; count 4 against
Bullock in his official and individual capacity for violation
of
Plaintiffs’
First
Amendment
rights
to
freedom
of
association; count 5 against Pesano in his official and
individual
capacity
for
violation
of
Plaintiffs’
First
Amendment rights to freedom of association; count 6 against
Greco and Gee in their official and individual capacities for
violation of Plaintiffs’ First Amendment rights to freedom of
association; count 7 against Bullock in his official and
individual
capacity
for
violation
of
Plaintiffs’
First
Amendment rights to freedom of religion; count 8 against
Pesano in his official and individual capacity for violation
of Plaintiffs’ First Amendment rights to freedom of religion;
count 9 against Greco and Gee in their official and individual
capacities for violation of Plaintiffs’ First Amendment rights
to freedom of religion; count 10 against Bullock, Pesano,
Greco, and Gee in their official and individual capacities
pursuant to 42 U.S.C. § 1983 and § 1988; count 11 against the
Florida State Fair Authority, Bullock, Pesano, Greco, and Gee
for injunctive relief pursuant to 42 U.S.C. § 1983; count 12
against the Florida State Fair Authority, Bullock, Pesano,
Greco, and Gee for declaratory relief pursuant to 28 U.S.C.
4
§ 2201(a) and Federal Rule of Civil Procedure 57.1
Defendants seek an Order dismissing Plaintiffs’ Second
Amended Complaint in its entirety pursuant to Rule 12(b)(6),
Fed.R.Civ.P.
II.
Plaintiffs have responded to the Motion.
Legal Standard
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff.
Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further,
this Court favors the plaintiff with all reasonable inferences
from the allegations in the complaint.
Stephens v. Dep’t of
Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)
(“On a motion to dismiss, the facts stated in [the] complaint
and all reasonable inferences therefrom are taken as true.”).
1
Counts one, four, and seven incorporate paragraph 11,
which states that “Bullock is being sued in his individual
capacity and in his official capacity.” (Doc. # 37 at ¶ 11).
Counts two, five, and eight incorporate paragraph 12, which
states that “Pesano is sued in his individual capacity and in
his official capacity.” (Id. at ¶ 12). Counts three, six, and
nine incorporate paragraphs 13 and 14, which state that “Greco
is sued in his individual capacity and in his official
capacity” and “Gee[] is being sued individually as policy
maker and in his official capacity[,]” respectively. (Id. at
¶¶ 13-14). The Court therefore rejects Defendants’ argument
that the Complaint fails to specify whether Plaintiffs seek
relief against Defendants Bullock, Pesano, Greco, and Gee both
in their individual capacities and official capacities.
5
However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, 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. 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)(internal
citations omitted).
In addition, courts are not “bound to
accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
Furthermore, “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).
III. Analysis
A.
Counts One Through Nine
In counts one through nine, Plaintiffs sue Bullock,
Pesano, Greco, and Gee for alleged constitutional violations
and seek compensatory damages, among other relief.
However,
Plaintiffs do not specify that they assert counts one through
nine pursuant to § 1983.
Rather, Plaintiffs bring a separate
§ 1983 claim in count ten.
This pleading strategy fails
because the Constitution does not include a private right of
action for civil damages.
Instead, “[s]ection 1983, which
6
derives from § 1 of the Civil rights Act of 1871 . . . creates
a private right of action to vindicate violations of rights,
privileges, or immunities secured by the Constitution and laws
of the United States.” Rehberg v. Paulk, 132 S. Ct. 1497, 1501
(2012)(citations omitted). “The only vehicle for enforcing
plaintiff’s
[First
Amendment]
constitutional
claims
is
§ 1983.” Anderson v. Bd. of Regents of the Univ. Sys. of Ga.,
No. 1:04-cv-3135, 2010 U.S. Dist. LEXIS 9239, at *5 (N.D. Ga.
Feb. 2, 2010)(citing Porter v. White, 483 F.3d 1294, 1307
(11th Cir. 2007)(noting that § 1983 “creates a species of tort
liability in favor of persons who are deprived of rights . .
. secured to them by the Constitution.”)).
The
Court
agrees
with
Defendants’
argument
that
“Plaintiffs’ naked reference to § 1983 is insufficient for
Defendants or this Court to assume that they intended to bring
[counts one through nine] under its rubric . . . Plaintiffs
may have identified constitutional rights alleged to have been
violated,
but
have
failed
to
allege
causes
of
associated with those violations.” (Doc. # 45 at 6).
action
Because
counts one through nine are not specifically asserted pursuant
to § 1983, they are subject to dismissal without prejudice and
with leave to amend.
7
B.
Count Ten
It is likewise true that § 1983 is not a source of
substantive federal rights. Whiting v. Taylor, 85 F.3d 581,
583 (11th Cir. 1996). Instead, § 1983 provides a vehicle for
the vindication of federal rights created elsewhere.
See
Chapman v. Hous. Welfare Rights Org., 441 U.S. 600, 617
(1979)(noting that “one cannot go into court and claim a
violation of section 1983–for section 1983 by itself does not
protect anyone against anything.”).
Defendants assert that count ten is subject to dismissal
because Plaintiffs do not identify which federal rights they
seek to vindicate. The Court rejects this argument. In count
ten, Plaintiffs asserts that Defendants Bullock, Pesano,
Greco, and Gee violated Plaintiffs’ First Amendment rights of
freedom of expression, freedom of association, and freedom of
religion. (Doc. # 37 at ¶¶ 62-64).
The Court does, however, agree with Defendants that count
ten presents an impermissible “shotgun” approach to pleading
because, in that count, “multiple claims are brought against
multiple parties.” Cesnik v. Edgewood Baptist Church, 88 F.3d
902, 905-06 (11th Cir. 1996)(A shotgun pleading “disregard[s]
the principle that separate, discrete causes of action should
be plead in separate counts.”).
8
The Court thus grants the
motion to dismiss as to count ten, but grants Plaintiffs the
opportunity to assert their § 1983 claims against the relevant
Defendants in separate counts.
The Court notes that it has dismissed counts one through
ten on the basis of structural and procedural deficiencies.
The
Court
recognizes
that
Defendants
have
raised
the
substantive argument that certain claims asserted here are
barred by the application of the Eleventh Amendment. In the
instance that Plaintiffs file an Amended Complaint setting
forth § 1983 counts against Bullock, Pesano, Greco, and Gee,
Defendants may reassert their Eleventh Circuit arguments.
However, the Court notes that, if Defendants ask the Court to
consider matters external to the four corners of the operative
Complaint, Defendants should assert their arguments under a
vehicle other than a Rule 12(b)(6) motion to dismiss.
C.
Counts Eleven and Twelve
In count eleven, Plaintiffs seek an injunction against
all Defendants: (1) “to not infringe, in any manner, against
the Constitutional Right of members of motorcycle clubs and
motorcycle ministries to wear vests with ‘patches’ on them
signifying membership within a particular organization;” (2)
restraining Defendants “from ordering, compelling, bullying,
requesting, coercing, or threatening a member of a motorcycle
9
club
or
motorcycle
ministry
to
remove
their
vests
with
‘patches’ on them signifying membership within a particular
organization;” and (3) restraining Defendants “from stifling
the Constitutional Rights of members of a motorcycle ministry
from wearing in public and at public events the religious
crucifix symbol (cross) on any particular piece of clothing
and the prevention of praying in a public forum.” (Doc. # 37
at 17).
In count twelve, Plaintiffs seek a “Declaratory Judgment
against all Defendants that the Defendants’ actions violated
Plaintiffs’ rights under the First and Fourteenth Amendments
to the United States Constitution.” (Doc. # 37 at 19).
Defendants
assert
that
Plaintiffs’
requests
for
injunctive and declaratory relief are subject to dismissal
because the Second Amended Complaint is devoid of allegations
giving rise to standing necessary to seek such relief.
The
Court concurs.
“A prayer for injunctive and declaratory relief requires
an assessment of whether the plaintiff has sufficiently shown
a real and immediate threat of future harm.” Elend v. Basham,
471 F.3d 1199, 1207 (11th Cir. 2006).
“The binding precedent
in this circuit is clear that for an injury to suffice for
prospective relief, it must be imminent.” Id.; see also 31
10
Foster Children v. Bush, 329 F.3d 1255, 1266-67 (11th Cir.
2003)(noting that standing for declaratory or injunctive
relief requires that future injury proceed with a high degree
of immediacy); City of Los Angeles v. Lyons, 461 U.S. 95, 103
(1983)(“past exposure to illegal conduct does not in itself
show a present case or controversy regarding [prospective]
relief . . . if unaccompanied by any continuing, present
adverse effects.”).
Conspicuously absent from the operative Complaint is any
allegation that the Plaintiffs intend to return to the Florida
Stair Fair wearing their prohibited patches or that the
Plaintiffs face specific future harm at the hands of the
Defendants. In count twelve, Plaintiffs allege only that
“without declaratory relief, law enforcement and the Florida
State Fair Authority will continue to selectively exclude
certain
motorcyclists
from
the
fair,
and
to
intimidate
citizens to relinquish their rights of free speech, free
associations and freedom of religion.” (Doc. # 37 at ¶ 71).
These vague allegations fall short of Plaintiffs’ burden under
Lyons and other binding case law.
Without specific and non-
speculative allegations that Plaintiffs face future injury,
counts eleven and twelve are subject to dismissal.
11
As with
counts one though ten, the Court grants Plaintiffs leave to
amend these claims.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendants’ Motion to Dismiss Plaintiffs’ Second Amended
Complaint
(Doc.
#
45)
is
GRANTED
as
specified
above.
Plaintiffs are granted leave to file an Amended Complaint by
September 30, 2013.
DONE and ORDERED in Chambers, in Tampa, Florida, this
10th day of September, 2013.
Copies: All Counsel of Record
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?