Bey v. City of Tampa Code Enforcement et al

Filing 21

ORDER granting 19 motion to dismiss. The clerk is directed to close this case. Signed by Judge James D. Whittemore on 11/2/2015. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NURA WASHINGTON BEY,
Plaintiff,
Case No: 8:14-cv-954-T-27AEP

v.
CITY OF TAMPA and STEVE
MATEYKA,
Defendants.
I

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ORDER
BEFORE THE COURT is Defendants' Dispositive Motion to Dismiss Plaintiffs Amended
Complaint With Prejudice (Dkt. 19). Plaintiff did not respond and the time in which to do so has
passed. Accordingly, the Motion is deemed unopposed. Upon consideration, the Motion is
GRANTED.

I.

BACKGROUND
On April 22, 2015, Plaintiff filed a civil rights complaint alleging violations of the Religious

Land Use and Institutionalized Persons Act ("RLUIPA") and of her First, Fourth, Fifth, and Ninth
Amendment rights (Dkt. 1). The Complaint was dismissed with prejudice (Dkt. 11 ). Plaintiff
appealed and the Eleventh Circuit Court of Appeals affirmed in part as to the Fourth, Fifth, and
Ninth Amendment claims, and vacated and remanded in part to enter a new judgment dismissing
Plaintiffs First Amendment free exercise and association claims and RLUIPA equal terms and
nondiscrimination claims without prejudice (Dkt. 15). On April 6, 2015, Plaintiff filed an Amended
Complaint (Dkt. 17). The factual allegations in the Amended Complaint are identical to those in her
original Complaint and will not be repeated here.

On May 7, 2015, in accordance with the Eleventh Circuit's Mandate, Plaintiffs First
Amendment free exercise and association claims and RLUIPA equal terms and nondiscrimination
claims were dismissed without prejudice and she was granted leave to file the Amended Complaint
(Dkt. 20).
Defendants move to dismiss the Amended Complaint as premature and procedurally
improper, for failure to comply with the Eleventh Circuit's mandate, and for failure to state a claim.
Because Plaintiff was granted leave to file the Amended Complaint, Defendants' procedural
arguments are moot. However, the Amended Complaint is subject to dismissal with prejudice.
II.

STANDARD
Rule 8(a)(2) ofthe Federal Rules of Civil Procedure requires a plaintiff to provide a short and

..

plain statement of her claim sufficient to demonstrate an entitlement to relief and to give fair notice
of the grounds on which the claim rests. Fed. R. Civ. P. 8(a)(2); Bel!Atl. Corp. v., 550 U.S. 544, 555
(2007). A plaintiff is not required to set out in detail the facts on which the claim is based.
However, a plaintiff must allege "more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do." Twombly, 550 U.S. at 555.
All of the factual allegations in a complaint must be accepted as true for the purposes of a
motion to dismiss, but this tenet is "inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). "While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations." Id. at 679. All reasonable inferences must be drawn in the
plaintiffs favor. St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002).

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III.

DISCUSSION

A.

First Amendment Claims

In Count I, Plaintiff alleges Defendants violated her First Amendment rights to exercise her
religion, to assemble, and to free speech by "dictating" that she cannot display her "Moorish
Religious, Heritage, and History sign of the Morocco Treaty of Peace and Friendship" without a
permit (Dkt. 17 at 8). However, the Amended Complaint suffers from the same deficiencies as the
original Complaint in that Plaintiff does not allege that "she had applied for or was denied the
permits, that she was not required by the ordinances to obtain the permits, or that she corrected the
code violations prior to the code enforcement hearing." (See Dkt. 15 at 8, Eleventh Circuit opinion).
Instead, once again, Plaintiff appears to allege that she is exempt from local land use regulations, a
theory the Eleventh Circuit rejected (see id.).
Plaintiffs First Amendment claims will be dismissed with prejudice. Plaintiff has already
been given a chance to amend these claims. And the Eleventh Circuit found the facts Plaintiff
continues to allege in support of these claims to be legally insufficient. Plaintiff has therefore failed
to cure the deficiencies in her original Complaint. Rather, she continues to pursue the theory that her
status as "Moorish American national" exempts her from the City of Tampa's permitting
requirements and jurisdiction. As such, it appears that any further amendment would be futile. See
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) ("A district court need not, however, allow

an amendment (1) where there has been undue delay, bad faith, dilatory motive, or repeated failure
to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause
undue prejudice to the opposing party; or (3) where amendment would be futile."). Moreover,
Plaintiff did not respond to the motion to dismiss or request another chance to amend. While pro se
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pleadings are construed liberally, the court does not have the "license to serve as de facto counsel
for a party, or to rewrite an otherwise deficient pleading in order to sustain an action." GJR lnvs., Inc.

v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)(citation omitted), overruled on
other grounds by Iqbal, 556 U.S. 662, 129 S. Ct. 1937.

B.

Fourth, Fifth, and Ninth Amendment Claims

In Count II, Plaintiff alleges Defendants violated her Fourth Amendment right to privacy
when Defendant Mateyaka intruded and confronted her husband and lied about her land and code
violations, which resulted in fines and liens (Dkt. 17 at 9). In Count III, it appears that Plaintiff
alleges Defendants violated her Ninth Amendment rights by imposing fines, although most of the
allegations are merely statements about "Indigenous People," colonial legislatures and courts, and
various purported treaties (Id. at 11-15). There is a passing reference to the Fifth Amendment and
due process within the Ninth Amendment claim (Id. at 15).
The Eleventh Circuit affirmed the dismissal with prejudice of Plaintiffs Fourth, Fifth, and
Ninth amendment claims, which were based on the same allegations as in the Amended Complaint
(Dkt. 15 at 7 n.5, 9-11, Eleventh Circuit opinion). These claims are therefore barred. See Astron

Indus. Associates, Inc. v. Chrysler Motors Corp., 405 F.2d 958, 960 (5th Cir. 1968) ("a dismissal
with prejudice at any stage of a judicial proceeding, normally constitutes a final judgment on the
merits which bars a later suit on the same cause of action."). 1

Although Plaintiff was given leave to amend her RLUIPA claims, the Amended Complaint includes no
such claims. To the extent Plaintiff brings claims under 28 U.S.C. §§ 241 and 242, these claims fail. See Cok v.
Cosentino, 876 F.2d 1, 2 (I st Cir. 1989) ("Only the United States as prosecutor can bring a complaint under 18
U.S.C. §§ 241-242 (the criminal analogue of 42 U.S.C. § 1983) .... ").
Finally, because none of Plaintiff's claims survive, it is unnecessary to address Defendants' arguments with
respect to Plaintiff's claims for injunctive relief, punitive damages, and qualified immunity.
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Accordingly, Defendants' Dispositive Motion to Dismiss Plaintiffs Amended Complaint
With Prejudice (Dkt. 19) is GRANTED. The Amended Complaint is DISMISSED with prejudice
and the Clerk is directed to CLOSE the file .
DONE AND ORDERED this

.J
_X_ day ofNovember, 2015.

Copies to:
Counsel of Record
prose plaintiff

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