Mitchell v. City of Bartow

Filing 24

ORDER granting 22--motion to dismiss; dismissing the second amended complaint; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 2/18/2020. (GSO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ELLIS STEVE MITCHELL,
Plaintiff,
v.

CASE NO. 8:18-cv-1088-T-23CPT

CITY OF BARTOW,
Defendant.
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ORDER
Suing under Section 1983, Ellis Steve Mitchell, appearing pro se, claims
(Doc. 21) that the City of Bartow deprived Mitchell of a constitutional right (1) by
“gaveling down” Mitchell during two city commission meetings and (2) by
performing a criminal background check against Mitchell after the first meeting.
A June 22, 2018 order (Doc. 7) dismisses Mitchell’s original complaint for failure to
state a claim, and a December 26, 2019 order (Doc. 20) dismisses Mitchell’s first
amended complaint for failure to state a claim. With leave, Mitchell for a second
time amends (Doc. 21) the complaint, which the City moves (Doc. 22) to dismiss for
failure to state a claim.
Mitchell’s second amended complaint fails to remedy any of the deficiencies
identified by the order dismissing Mitchell’s first amended complaint. In the second
amended complaint, Mitchell alleges that during a city commission meeting Mitchell

“was recognized to speak” and that the vice-mayor “gavelled (sic) down” Mitchell
because the vice-mayor “did not like what the plaintiff was saying.” (Doc. 21 at 11)
Like Mitchell’s first two complaints, Mitchell’s second amended complaint alleges
no facts about the content of Mitchell’s speech that allegedly spurred the vice-mayor
to “gavel down” Mitchell and no facts about the circumstances accompanying and
causing the “gaveling down.” The order dismissing Mitchell’s first amended
complaint explains that a city commission meeting is a “limited” public forum
during which the city may impose content-neutral restrictions on the time, place, and
manner of speech. (Doc. 20 at 4) As the order teaches:
[A] city can confine a meeting to a specified subject, can
preclude extraneous — or require germane — discourse, can
prohibit disruptive behavior, and can allot a stated time to a
speaker. The First Amendment grants no license to divert,
monopolize, disrupt, or truncate presentations received in a
“limited public forum,” such as a meeting of a city commission.
A city always can, and sometimes must, for example, through a
presiding officer’s applying rules of procedure and decorum,
reasonably limit a speaker’s time and topic to enable the
informed, effective, and orderly conduct of the public’s
business. Rowe v. City of Coca, Florida, 358 F.3d 800, 802–03
(11th Cir. 2004).

(Doc. 20 at 4)
Although alleging facts that suggest a possibility of the City’s liability, Mitchell
alleges no facts plausibly suggesting that the City’s “gaveling down” of Mitchell
constitutes an impermissible restriction on Mitchell’s speech. Despite two
opportunities to amend, Mitchell continues to allege sparse, uninformative facts that

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support no sustainable inference that the City denied Mitchell a right secured by the
First Amendment.
Also, Mitchell alleges that the City deprived Mitchell of a right secured by the
Fourth Amendment because the police chief ordered a detective to perform a “record
check” against Mitchell to “stop [Mitchell’s] free speech at Public Meetings.” As the
order dismissing Mitchell’s first amended complaint explains, Mitchell enjoys “no
legitimate expectation of privacy in the facts of [Mitchell’s] criminal background.”
(Doc. 20 at 6); see also United States v. Villagrana-Flores, 467 F.3d 1269, 1277 n.4 (11th
Cir. 2007) (“[T]he Fourth Amendment is not implicated simply because a name,
legally obtained, is later used to run a criminal background check. That action is
neither a search nor a seizure, for there is no legitimate expectation of privacy in
one’s criminal history.”)
Finally, Mitchell asserts — without providing supporting facts — that the
defendants denied Mitchell due process under the Fourteenth Amendment. Like the
first two complaints, the second amended complaint identifies neither a
constitutionally deficient process employed by the City nor the deprivation of an
interest in life, liberty, or property. Devoid of facts, the second amended complaint
fails both to inform the defendants of the alleged due process claim and to permit the
formulation of a cogent response.
Despite two opportunities to amend, Mitchell has failed to allege any facts
plausibly suggesting that the City denied Mitchell a right secured by the Constitution.

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The City’s motion (Doc. 22) to dismiss is GRANTED, and the second amended
complaint is DISMISSED for failure to state a claim. The clerk is directed to
CLOSE the case.
ORDERED in Tampa, Florida, on February 18, 2020.

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