Filing 29

ORDER - 1. Clerk to consolidate cases 5:09cv285/RS/MD; 5:09cv286/RS/MD; 5:10cv28/RS/MD. - - A copy of this order shall be placed in each of those cases. All future pleadings shall be filed in 5:09cv285/RS/MD (LEAD Case). - 2. Pla shall have twenty-eight (28) days to file Fourth Amended Complaint. - - - Signed by MAGISTRATE JUDGE MILES DAVIS on August 5, 2010. (cbj)

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STEWART v. FLORIDA DEPARTMENT OF EDUCATION & VOC REHAB DIVISION et al Doc. 29 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION BILLY CLIFTON STEWART, Plaintiff, vs. FLORIDA DEPARTMENT OF EDUCATION AND VOC REHAB DIVISION, et al., Defendants. ORDER Plaintiff Billy Clifton Stewa rt currently has three cases pending before the in the three cases, upon a rev iew of the Each of the three cases ar ises out of the of plaintiff's quest to obtain vocational 5:09cv285/RS/MD undersigned: 5:09cv285/RS/MD, 5:09ccv286/RS/MD and 5:10cv28/RS/MD. Despite the fact that plaintiff names different defendants respective files in these cases, significant common questions of fact or law. alleged wrongs that occurr ed in the course t he C ourt has determined that these cases present rehabilitation benefits. Some of the same actions and event are repeated throughout the s pleadings in each case, and whether named as defendants in each case or not, the same individuals' names appear in more than one case . Accordingly, pursuant to Rule 42( a), Fed. R. Civ. P., these cases shall be consolidated for all further proceedings. Therefore, all further papers and pleadings shall be filed only in Case No. 5:09cv285/RS/MD. In one of his pending cases, at the time he filed his most recent complaint, plaintiff mentioned that he "may make a motion to di miss without prejudice soon because he has s a wish to attempt to make a complaint in Flrida Court." (Case 5:09cv286/RS/MD, doc. 26 o at 1). Nothing further was filed in that case and the status of plaint iff's desire to file a Page 2 of 8 complaint in state court is not clear. He ma have already done this. If he has, he should y file a notice of voluntary dismissal of this case. If, on the other hand, plaintiffwishes to proceed with this consolidated action, he will be required to file a unified Fourth Amended Co mplaint in which he sets forth his claims and allegations against all defendants. Plaintiff should be mindful that he should balance the requirements of Rule 8 ofthe Federal Rules of Civil Proc dure, which instructs litigants e to include a "short and plain statement of the clim," with the necessity to provide sufficient a detail from which the court ma assess whether plaintiff has presented a viable claim, and y perhaps ultimately, for the defendants to respond to plaintiff's allega tions. Plaintif f has previously been advised that he should not fill his pleadings with irrelevant historical and background material which is not directly related to the claims asserted in the "Statement of Claims" section of the complaint. For pl intiff's benefit, the court will also provide some a additional guidance to him regarding the appr opriate presentation of his case, as it has done previously when it noted thelack of legal viability of some of the claims he purported to raise. For instance, in more than oneof the underlying complaints, he appears to wield the terms "equal protection" and "due process" without a full understanding of their legal meaning, and hence without providing adequate factual support for these claims. The Due Process Clause of the FourteenthAmendment provides that no state shall "deprive any person of life, liberty or property without due process of law." It is comprised of both a procedural and a substantive component. The initial question with any due process chalenge is whether the injury claimed by l the plaintiff is within the scope of the Due Process Clause. Behrens v. Regier, 422 F.3d 1255, 1259 (11th Cir. 2003) (citing Smith ex. rel. Smith v. Siegelman, 322 F.3d 1290, 1296 (11th Cir. 2003)). "The requirements of pr ocedural due process apply only to the deprivation of interests encompassed by theFourteenth Amendment's protection of liberty and property." Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972) (cited in Behrens, supra). Plaintiff must therefore identify a liberty or property interestof which he was deprived suchhat an actionable procedural due t process violation ensued. Case No: 5:09cv285/RS/MD Page 3 of 8 The substantive component ofthe Due Process Clause alsoprotects rights that are "fundamental," that is, rightsthat are implicit in the concept of ordered liberty. Behrens, 422 F.3d at 1264 (quot ing McKinnery v. Pate, 20 F.3d 1550, 1556 (11 th Cir. 1994) (internal quotations omitted) . Fundamental rights are those rights created by the Constitution. t Greenbriar Vill., L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262 (11h Cir. 2003) (citing DeKalb Stone, Inc. v. county of DeKalb, Ga., 106 F.3d 956, 959 n.6 (11 Property interests are not constitutional in origin. th Cir. 1997). Greenbriar Village, 345 F.3d at 1262 (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.C . 2701, 2709, 33 L.Ed.2d 548 t (1972)). Absent a basis for a claim of a substantive due process violation, he should omit reference to this sort of claim from his Fourth Amended Complaint. In order to state an equal protection claim, a plaintiff must prove t hat he was discriminated against by establishing that other similarly situated individuals outside of his protected class were tr eated more favorably. Amnesty Intern., USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009) (citing GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359 (11th Cir. 1998). Thus the identification ofthese individuals comprises a part of the claim itself. Id. Plaintiff must identify the existence of "similarly situated individuals" or there is no basis for an equal protection claim. Plaintiff has made referenceto 28 U.S.C. 1985(3) ineach of the underlying cases. To state a claim under 1985( 3), a plaintiff must all ege: (1) defendants engaged in a conspiracy; (2) the conspiracy's purpose was to directly or indirectly deprive a protected person or class the equal protection of the laws, or equal privileges and immunities under the laws; (3) a conspirator committed an act to further the conspiracy; and (4) as a result, the plaintiff suffered injury to either his person or his property, or was deprived of a right or privilege of a citizen of the United States. Jimenez v. Wellstar Health System , 596 F.3d 1304, 1312 (11th Cir. 2010) (citingJohnson v. City of Fort Lauderdale, 126 F.3d 1372, 1379 (11th Cir.1997)). Again, with respect to this claim, plaintiff has failed to identify similarly situated individuals to support his assertion that he was subjected to an equal protection violation. If he cannot do this, he should dr Complaint. Case No: 5:09cv285/RS/MD op this c laim from his Fourth Amended Page 4 of 8 Title 29 U.S.C. 794(a) provides in per tinent part that "no otherwise qualified individual with a disability . . . shall solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subj cted to discrimination under e any program or activity receiving Federal financ ial assistance. . . " To the extent plaintiff wishes to raise a claim under this s ection, he must establish that he was "otherwise qualified" for the positions he was allegedly denied. Plaintiff has named Eric Smith, the Co mmissioner of the Florida Department of Education and Vocational Rehabilitation, as a defendant in more than oneof the underlying cases. However, there are no allegations against Mr. Smith in the complaints. Plaintiff should also be aware that respondeat superior, without more, does not provide a basis for recovery under section 1983. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 t L.Ed.2d 509 (1981); Goebert v. Lee County, 510 F.3d 1312, 1331 (11h Cir. 2007);Cottone v. Jenne, 326 F.3d 1352 (11 th Cir. 2003) ; Harris v. Ostrout, 65 F.3d 912, 917 (11 th Cir. 1995). "Supervisory liability under 1983 occurs either when the supervisor personally participates in the alleged unconstitutional conduct or when there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation." Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003); see also Marsh v. Butler County, 268 F.3d 1014, 1035 (11th Cir. 2001); Swint v. City of Wadley, Alabama, 51 F.3d 988, 999 (11th Cir. 1995); Rivas v. Freeman, 940 F.2d 1491, 1495 ( 11th Cir . 1991). Thus, one cannot be held liable for the actions or om issions of others, but th c an only be held responsible if he participated in the deprivati on of plaintiff's cons titutional rights. Marsh, supra; Harris v. Ostrout, 65 F.3d 912, 917 (11 Cir. 1995) . The necessary causal connection can be established "when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so." Cottone, supra, (quoting Gonzalez v. Reno, 325 F.3d at 1228, 1234 ( 11th Cir. 2003) th (quoting Braddy v. Fla. Dept. of Labor & and Employment Sec., 133 F.3d 797, 802 (11 Cir. 1998))); Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990); Ancata v. Prison Health Services, Inc., 769 F.2d 700 (11th Cir. 1985). A supervisor ordinarily cannot be held liable under a respondeat superior theory for the acts and omissions of individuals acting in Case No: 5:09cv285/RS/MD Page 5 of 8 contravention to policy. Tittle v. Jefferson County Commission, 10 F.3d 1535, 1540 (11th Cir. 1994). However, the causal connection may be established when a supervisor's "custom or policy ... result[s] in deliberate indifference to constiutional rights" or when facts t support an inference that the supervisor "direc ted [his] subordinates to act unlawfully or knew that the subordinates would act unlawfu lly and failed t o stop them from doing so." Goebert v. Lee County, 510 F.3d 1312, 1331 (11 th Cir. 2007) (citation omitted); Cottone, 326 F.3d at 1360. "The st andard by which a supervisor is held liable in [his] individual capacity for the actions of a s bordinate is extremely rigorous."Cottone, 326 F.3d at 1360u 1361 (quoting Gonzalez, 325 F.3d at 1234). Plaintiff also states that some of hi s claims are against t he defendants in their "official capacities." Such claims are likely barred by Eleventh Amendment immunity. Although, by it s t erms, the Eleventh Amendm ent does not bar suits against a state in federal court by its own citizens, the Supreme Court has extended its protections to apply in such cases. Abusaid v. Hillsborough County Bd. of County Com'rs, 405 F.3d 1298, 1303 (11th Cir. 2005) (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); see also Manders v. Lee, 338 F.3d 1304, 1308 n. 8 (11 th Cir. 2003) (en banc)). Absent waiver or express congressional abrogation, the Eleventh Amendm ent prohibits a suit brought by a priv ate indiv idual agai nst a state in federal court. See Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 122 S.Ct. 1864, 187778, 152 L.Ed.2d 962 (2002);Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Gamble v. Florida Department of Heath and Rehabilitative Services, 779 F.2d 1509, 1511 (11th Cir. 1986). A suit against a state employee in his or her official capacity is deemed to be a su it against the state for Elevent h Am endment purposes. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45, 58 (1989). Thus, a plaintiff may not br ing a 1983 action for monetary Case No: 5:09cv285/RS/MD Page 6 of 8 damages against the state or state officials in their official capacities. Miller v. King, 384 F.3d 1248 (11th Cir. 2004).1 In amending, plaintiff should carefully revi ew the foregoing, as well as the court's previous orders in each of t he underlying cases, to determine whether he can present allegations sufficient to state a cause of action under the relevant law against any of the individuals he wishes to name as a defendant. If plaintiff chooses to file a Fourth Amended Complaint, he should name asdefendants only those persons w o are responsible for the h alleged constitutional violations. In the statem nt of facts, plaintiff should clearly describe e how each named defendant is involved in each alleged constitutional violation, alleging the claims as to each defendant in separat ely numbered paragraphs and including spec ific dates and times of the alleged unconstitutional acs. t should be set out clearly and in The facts relating to each defendant enough detail to s upport the legal conclusions in the complaint. Randall v. Scott, ___ F.3d. ___, 2010 WL 2595585 (11th Cir. 2010). If plaintiff cannot state exactly how a paricular defendant harmed him, or the defendant's actions do t not rise to the level of an actionable constitutional or statutory violation, he should delete or drop that person as a defendant from his complaint. In the section entitled "Statement of Claim," plaintiff must state what rights he contends have been violated, and he must provide support in the statementof facts for the claimed violatons. Plaintiff is advised that i the amended complaint must contain all of hi s allegations because once an amen ded complaint is filed, any matters not rais d therein are deemed abandoned. Local Rule 15.1, e Northern District of Florida. However, plaintiff's Fourth Amended Complaint should not exceed 25 pages, absent leave of court.2 State officials in their official capacities are not immune from claims for prospective declaratory or injunctive relief. Powell v. Barrett, 496 F.3d 1288, 1308 & n. 27 (11th Cir. 2007); Miller v. King, 384 F.3d 1248 (11th Cir. 2004) (citing Will, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 2312 n. 10 105 L.Ed.2d 45 (1989) (citing Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985)); Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-54, 52 L.Ed. 714 (1908); see Edwards v. Wallace Community College, 49 F.3d 1517, 1524 (11th Cir.1995); Stevens v. Gay, 864 F.2d 113, 114-15 (11th Cir.1989)). 1 This limitation should not be difficult in spite of the consolidation of three cases. Each of those cas es contains repetitive and superfluous background or allegations, and many of the claims plaintiff purported to raise are not legally viable. Case No: 5:09cv285/RS/MD 2 Page 7 of 8 Plaintiff should file a single copy ofhe Fourth Amended Complaint bearing the case t number 5:09cv285/RS/MD and an original signature with the Court and keep an identical copy for himself. Plaintiff should not file a memorandum of law or o therwise provide citations to statutes and cases,and he should not file exhibits evidentiary support for his as complaint. The court will notify plaintiff wen memoranda and exhibits are necessary, such h as prior to trial or in conj nction with a motion for summaryudgment. Furthermore, plaintiff u j should not submit service copies of his complaint unless and until the court directs him to do so. Finally, plaintiff is advised that discoveryis premature at this stage of the case and plaintiff should not do any discovery without leave of court. Accordingly, it is ORDERED: 1. The clerk is di cted to consoidate cases 5:09cv285/RS MD; 5:09cv286/RS/MD; re l / 5:10cv28/RS/MD. A copy of this order shall be placed in each of those cases. All future pleadings shall be filed in 5:09cv285/RS/MD. 2. The plaintiff shall have twenty-eight (28) days in which to file a Fourth Amended complaint, which shall be typed or clearly wr itten and shall follow the format of standard court forms and the instructions contained herein. 3. If plaintiff has chosen to pursue his claims in state court or no longer wishes to pursue his claims in this forum or at this Dismissal. 4. In any event, failure to submit an amended complaint as instructed will result in a recommendation of dismissal without prejudice of this entire action. DONE AND ORDERED this 5th day of August, 2010. time, he should file a Notice of Volunt ary /s/ Miles Davis MILES DAVIS UNITED STATES MAGISTRATE JUDGE Case No: 5:09cv285/RS/MD Page 8 of 8 Case No: 5:09cv285/RS/MD

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