Barth v. McNeely et al

Filing 36

ORDER granting 8 motion to dismiss; granting 13 motion to dismiss Private Defendants' Motion to Dismiss for lack of subject matterjurisdiction is GRANTED WITH LEAVE TO AMEND as to Plaintiffscitizenship. Defendant Sarasota County's Mo tion to DismissCount I for failure to state a claim is GRANTED, and Defendant SarasotaCounty is dismissed from this action. Private Defendants' Motion toDismiss Counts II, III, and IV for failure to state a claim is GRANTEDregarding violations o f the Civil Rights Act, and Private Defendants' Motionto Dismiss Counts II, III, IV, and V for lack of subject matter jurisdiction isGRANTED WITH LEAVE TO AMEND. The amended complaint must be filed within fifteen days of this date or this case will be dismissed in itsentirety. Signed by Judge Elizabeth A. Kovachevich on 7/7/2014. (SN)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN S. BARTH,
Plaintiff,
vs.

CASE NO.: 8:14-cv-00118-EAK-EAJ

STARLET McNEELY,
CHANTEL HOLLMAN,
HERBERT BUCK,
SARASOTA COUNTY,
JOHN DOE and JANE DOE,
Defendants.

/
ORDER ON DEFENDANTS’ MOTIONS TO DISMISS
This cause is before the Court on Defendant, Sarasota County’s,
Motion to Dismiss Count I of Plaintiff s Complaint (Doc. 8), Defendants,
Starlet McNeely, Chantel Hollman, and Herbert Buck’s (collectively
“Private Defendants”), Motion to Dismiss (Doc. 13), and Plaintiffs
Responses in Opposition to Defendants’ motions (Doc. 16; Doc. 19). For
the reasons set forth below, Defendant Sarasota County’s Motion to Dismiss
Count I for failure to state a claim is GRANTED, Private Defendants’
Motion to Dismiss Counts II, III, and IV for failure to state a claim is

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GRANTED with respect to violations of the Civil Rights Act, and Private
Defendants’ Motion to Dismiss state law claims in Counts II, III, IV, and V
for lack of subject matter jurisdiction is GRANTED WITH LEAVE TO
AMEND.
STATEMENT OF THE FACTS
Plaintiff submitted the following facts in the Complaint. The Court
recognizes these as “facts” only in regard to resolution of these pending
motions to dismiss.
Plaintiff lives next door to Defendants McNeely and Hollman on
Brazilnut Avenue in Sarasota County, Fla. (Doc. 1, Pg. 3). Defendant Buck
resides on Almond Avenue, one street behind Brazilnut Avenue. (Doc. 1,
Pg- 3).
On many occasions, Private Defendants left McNeely’s large dogs
outdoors to bark throughout the night. (Doc. 1, Pg. 9).
On November 27, 2012, after Sheriffs served the Summons and
Complaint for a state civil action for nuisance abatement, Buck pounded on
Plaintiffs door and shouted threats of violence before leaving at Plaintiffs
request. (Doc. 1, Pg. 8). With the direction of McNeely, Buck returned to
Plaintiffs home and continued the same threats causing Plaintiff to fear

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injury by Buck. (Doc. 1, Pg. 8). Sheriff deputies responded to Plaintiff’s
call and spoke with him and Buck. (Doc. 1, Pg. 9). The Sheriffs incident
report did not mention any offenses or identities and noted “a verbal
argument over dog barking” which did not occur that day. (Doc. 1, Pg. 9).
Harassment by Private Defendants occurred most days and nights
(Doc. 1, Pg. 10), but most deputy observations did not result in a report due
to deputy confusion on which ordinance to enforce, misunderstanding of
ordinances, and bias that they must protect dog owners. (Doc. 1, Pg. 13).
On one occasion, McNeely pounded on sheet metal during the night
after Plaintiff reported the dog barking. (Doc. 1, Pg. 10). After this
incident, Lieutenant Stroud assured Plaintiff that the report records
observations of nuisance whether or not action was taken. (Doc. 1, Pg. 11).
Deputies’ mistakes reduced the number of reports showing dog barking in
Plaintiffs second civil complaint in Circuit Court. (Doc. 1, Pg. 13).
In addition to Plaintiffs federal litigation, Plaintiff has filed five
related state civil actions. (Doc. 1). The first state civil action was
voluntarily dismissed by the Plaintiff, three subsequent complaints were
dismissed by the court, and Plaintiffs most recent related state claim is
pending before the Circuit Court. (Doc. 1).

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In Plaintiffs Complaint before this Court, Plaintiff alleges that
Defendants denied, and conspired to deny, Plaintiffs due process and equal
protection under the law. (Doc. 1, Pg. 4-6). Plaintiff also alleges several
related state law claims against the Private Defendants. (Doc. 1, Pg. 5-6).
STANDARD OF REVIEW
The allegations of a pro se complaint are held to less stringent
standards than pleadings drafted by lawyers. Haines v. Kemer, 404 U.S.
519, 520 (1972). Nevertheless, pro se litigants must still comply with
procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).
Federal Rule of Civil Procedure 8(a)(2) requires that a plaintiffs
complaint set out a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiffs obligation to provide 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.” Id. (citations and internal quotation marks
omitted).

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Therefore, to survive a defendant’s motion to dismiss, the plaintiffs
complaint “must now contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Am. Dental Ass ’n v.
Cigna Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Twombly, 550
U.S. at 570). In considering a motion to dismiss under this plausibility
standard, courts follow a two-pronged approach. First, a court must
“eliminate any allegations in [a] complaint that are merely legal
conclusions.” Id. at 1290 (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950
(2009)). Then, a court must take any remaining well-pleaded factual
allegations, “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. (citing Iqbal, 129 S. Ct. at
1950) (internal quotation marks omitted). In sum, Rule 8’s pleading
standard “does not require ‘detailed factual allegations,’ but demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).
DISCUSSION
Plaintiff asserts that Defendant Sarasota County is liable under 42
U.S.C. § 1983 for violations of Plaintiff s rights to due process and equal
protection afforded to him by the Fourteenth Amendment of the United

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States Constitution. Sarasota County makes several arguments for why
Plaintiffs claim against it must be dismissed. Private Defendants join in this
motion. (Doc. 13, Pg. 1). Sarasota County argues that Count I of Plaintiff s
Complaint should be dismissed because “the County is not an entity subject
to suit for the alleged actions of the Sheriff of Sarasota County and/or his
employees[,]” “[p]laintiff has failed to allege either a due process or equal
protection claim[,]” and the Plaintiff made “no allegation demonstrating an
affirmative causal connection between any act attributable to the County and
any alleged Section 1983 claim.” (Doc. 8, Pg. 1).
I. Plaintiff Fails To Show His Constitutional Rights Were Violated By
Sarasota County
To state a claim for municipal liability under 42 U.S.C. § 1983, a
plaintiff must show (1) that his constitutional rights were violated, (2) that
the municipality had a custom or policy that constituted deliberate
indifference to that constitutional right, and (3) that the policy or custom
caused the violation. McDowell v. Brown, 392 F.2d 1283, 1289 (11th Cir.
2004). An underlying constitutional injury must be found before examining
an entity’s policy or custom. Baker v. McCollan, 443 U.S. 137, 140 (1979);
Rooneyv. Watson, 101 F.3d 1378, 1381 (11thCir. 1996).

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A. Plaintiff Fails To Show A Violation Of His Due Process Rights
Plaintiffs allegations do not show deputies’ actions caused a
deprivation of a constitutionally protected right or liberty.
Plaintiff asserts Sarasota County violated his right to due process “by
means of customary selective enforcement, customary mistraining and
failure to train employees with reckless disregard and deliberate indifference
to need resulting in wrongful employee actions, and by customary
falsification and concealment of public records.” (Doc. 1, Pg. 4). Plaintiff
further asserts custom dictated deputies’ failure to enforce various nuisance
ordinances and inadequate investigation of Plaintiff s multiple complaints of
harassment by the Private Defendants. (Doc. l,Pg. 10).
The Due Process Clause of the Fourteenth Amendment provides that
“[n]o State shall. . . deprive any person of life, liberty, or property, without
due process of law.” U.S. Const, amend. XIV. A Section 1983 claim
alleging a denial of procedural due process requires proof than an action by
the state deprived an individual of a constitutionally-protected liberty or
property interest without providing constitutionally-adequate process.
Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003) (citing Cryder v.
Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)).

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The Due Process Clause “is phrased as a limitation on the State's
power to act, not as a guarantee of certain minimal levels of safety and
security.” DeShaneyv. Winnebago Cnty. Dep'tofSoc. Servs., 489 U.S. 189,
195 (1989). “Its purpose [is] to protect the people from the State, not to
ensure that the State protect[s] them from each other.” Id. at 196. Law
enforcement is generally not liable under the Fourteenth Amendment and
Section 1983 for harms that may have been prevented by better policing.
Town o f Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 768-769 (2005).
Plaintiff expressly contributes his injuries to the actions performed by
the Private Defendants. (Doc. 16, Pg. 10). Plaintiff asserts the deputies’
failure to enforce ordinances on numerous occasions facilitated and
prolonged these injuries. (Doc. 16, Pg. 10). Because law enforcement is not
required to protect individuals from third parties, the Sheriff deputies’ failure
to protect Plaintiff from harms solely created by the Private Defendants
cannot state a claim for a violation of Due Process.
Plaintiff erroneously argues that the use of the word “shall” in
Sarasota County’s Public Nuisance ordinance creates a duty to enforce the
ordinance. (Doc. 16, Pg. 12-13). It is well established that police officers
are afforded discretion in their investigation of complaints, “even in the

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presence of seemingly mandatory legislative commands.” Castle Rock, 545
U.S. at 761. The use of the word “shall” in the ordinance does not create an
affirmative duty for the police to enforce the ordinance in every nuisance
complaint.
Plaintiff also erroneously argues that acknowledgement and promises
from the Sheriff created an affirmative duty to protect. (Doc. 16). A State’s
knowledge of the circumstances and expressions of intent to help, without
action that makes the Plaintiff more vulnerable, does not create an
affirmative duty to protect. DeShaney, 489 U.S. at 200. While the Sheriff
may have been aware of the injuries inflicted by the Private Defendants in
this case, the allegations do not show that the State played any role in
creating the harm, nor do the allegations show that any actions by the
deputies made the Plaintiff more vulnerable to harm.
Plaintiff does not allege sufficient facts in his Complaint to show
“state action” as required to implicate the Due Process Clause of the
Fourteenth Amendment.
B. Plaintiff Fails To Show A Violation Of Equal Protection
Identical to his Due Process claim, plaintiffs Equal Protection claim
is based on the allegation that the deputies failed to thoroughly investigate

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his complaints and protect him from third parties. (Doc. 1, Pg. 10). Plaintiff
further alleges that deputies have enforced the ordinances in past cases and
would enforce the ordinances if the complaints were from other officers or
judges. (Doc. 1).
The Equal Protection Clause of the Fourteenth Amendment provides
that “[n]o State shall... deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const, amend. XIV.
A plaintiff alleging a “class of one” equal protection claim must show
that he was intentionally treated differently from others who were similarly
situated. Village ofWillowbrookv. Olech, 528 U.S. 562, 564 (2000). He
must also show that there was no rational basis for the disparate treatment.
Id.
A one-dimensional inquiry can be used to determine if individuals are
similarly situated when the challenged decisions involve only one relevant
factor. Griffin Industries, Inc. v. Irvin, 496 F. 3d 1189, 1203 (11th Cir.
2007). Other decisions require a multi-dimensional inquiry because they
involve discretionary decisionmaking based on many relevant factors.
Grider v. City o f Auburn, Ala., 618 F.3d 1240, 1265 (11th Cir. 2010). To be
similarly situated, the individuals must be “prima facie identical in all

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relevant respects.” Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1314
(11th Cir. 2006).
As discussed, supra, law enforcement is afforded discretion in its
investigation and is generally not held liable under the Fourteenth
Amendment for failure to prevent harms inflicted by others. Castle Rock,
545 U.S. at 761, 768-769. Due to law enforcement’s discretionary
decisionmaking, Plaintiff must allege facts to support he is “prima facie
identical [to comparators] in all relevant respects.” Campbell, 434 F.3d at
1314.
Plaintiff fails to allege facts to support disparate treatment by law
enforcement. To show disparate treatment, plaintiff alleges differing
outcomes in other cases and his own conjecture to how deputies may
respond to others’ complaints. (Doc. 1).
The Court finds that the Plaintiff only offers conclusory allegations
with no clear factual support of disparate treatment. Therefore Plaintiff fails
to state a claim for a violation of Equal Protection.
Due to Plaintiffs failure to sufficiently allege an underlying
constitutional injury, there is no need to examine policies and customs and
whether Sarasota County is the correct entity to be sued for such violations.

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As a result, Defendant Sarasota County’s Motion to Dismiss Count I for
failure to state a claim is GRANTED.
II. Plaintiff Fails To Show Private Defendants Violated The Civil
Rights Act
Plaintiff asserts Private Defendants “denied and conspired to deny to
plaintiff the exercise of rights guaranteed by the United States Constitution,
to liberty and the free use and enjoyment of his property, in violation of the
Civil Rights Act.” (Doc. 1, Pg. 5-6). Private Defendants argue that no
allegations in the complaint can establish “that McNeely, Saunders or Buck
are ‘state actors’ or have taken any action under color of state law, as is
necessary to establish a valid claim under the Civil Rights Act.” (Doc. 13,
Pg. 5.) In Plaintiffs response to Private Defendants’ motion, Plaintiff
clarifies that his Civil Rights claims against the Private Defendants are being
raised under 42 U.S.C. §§ 1985-1986 and therefore do not require the
Private Defendants to be state actors. (Doc. 19, Pg. 10).
Section 1985 provides a cause of action when there is a conspiracy to
deprive an individual of “the equal protection of the laws, or of equal
privileges and immunities under the laws[.]” 42 U.S.C. § 1985. Section
1986 provides a cause of action against any person who had knowledge of a

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Section 1985 conspiracy and had the power to prevent the commission of the
conspiracy but neglected or refused to do so. 42 U.S.C § 1986.
Section 1985 includes purely private conspiracies. Griffin v.
Breckenridge, 403 U.S. 88, 101 (1971). Although the statute reaches private
action, it was not intended “to apply to all tortious, conspiratorial
interferences with the rights of others.” Id. To avoid interpreting Section
1985 as a general federal tort law, “[t]he language requiring intent to deprive
of equal protection, or equal privileges and immunities, means that there
must be some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators' action.” Id. at 102.
Plaintiffs allegations may support a conspiracy among private
individuals, but Plaintiff fails to allege any facts to support that the Private
Defendants acted with a racial or class-based motive. Plaintiff merely
alleges general tortious interferences prompted by a disagreement between
neighbors. The Court finds these allegations are not actionable under
Section 1985.
Because Plaintiff fails to allege facts supporting a conspiracy
actionable under Section 1985, the Court finds Private Defendants cannot be
held liable for failing to prevent said inadequate conspiracy. Therefore,

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Private Defendants Motion to Dismiss Counts II, III, and IV for failure to
state a claim for a violation of Plaintiff s civil rights is GRANTED.
III. Plaintiff Failed To Clearly Establish Diversity Jurisdiction
Federal courts are courts of limited jurisdiction. Because Plaintiff
fails to state any claims under 28 U.S.C § 1331, Plaintiff must rely on
diversity jurisdiction for the Court to have subject matter jurisdiction over
his state law claims.
Pursuant to 28 U.S.C. § 1332, the district courts have original
jurisdiction for all civil actions between citizens of different states where the
matter in controversy exceeds $75,000.00. Under 28 U.S.C. § 1332,
citizenship is equivalent to an individual’s domicile. McCormick v.
Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002). An individual’s domicile is
the most recent state where he resided with the intent to remain indefinitely.
Id. at 1258.
Private Defendants successfully point out the inconsistencies in
Plaintiffs allegations as to his state citizenship. (Doc. 13, Pg. 7). Plaintiff
asserts that he is a citizen of Maine (Doc. 1, Pg. 7), but alleges his neighbors
in Sarasota County, the Private Defendants, harassed him for more than a
year. (Doc. 1, App’x 1). Further, in Plaintiff s response to Defendant

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f

Sarasota County’s Motion to Dismiss, Plaintiff asserts that he is a citizen of
Florida. (Doc. 16, Pg. 10).
The Court finds that Plaintiffs inconsistent allegations do not
establish diversity of citizenship. The Court recognizes that Plaintiff is
proceeding pro se. {See Doc. 1). In accordance with construing a pro se
complaint liberally, the Court, sua sponte, grants Plaintiff leave to amend his
Complaint to rectify the inconsistent allegations of citizenship and to limit
his complaint to the causes of action allowed by this order. Plaintiffs
amendment must be in accordance with the good faith requirements of
Federal Rule of Civil Procedure 11.
Private Defendants’ Motion to Dismiss for lack of subject matter
jurisdiction is GRANTED WITH LEAVE TO AMEND as to Plaintiffs
citizenship. Due to lack of subject matter jurisdiction, the Court refrains
from ruling on motions regarding the validity of the state law claims.
ORDERED that Defendant Sarasota County’s Motion to Dismiss
Count I for failure to state a claim is GRANTED, and Defendant Sarasota
County is dismissed from this action. Private Defendants’ Motion to
Dismiss Counts II, III, and IV for failure to state a claim is GRANTED
regarding violations of the Civil Rights Act, and Private Defendants’ Motion

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to Dismiss Counts II, III, IV, and V for lack of subject matter jurisdiction is
GRANTED WITH LEAVE TO AMEND. The amended complaint must
be filed within fifteen days of this date or this case will be dismissed in its
entirety.
DONE and ORDERED in Chambers, in Tampa, Florida this 7th day of
July, 2014.

ELIZABETHXT£©¥ACJH|;\1CH
LTNITED STATES DISTRICTt
JUDGE

Copies to: All parties and counsel of record