The City of Fort Lauderdale v. Hezzekiah Scott, et al
Filing
125
ORDER granting in part and denying in part 113 Motion to Dismiss Second Amended Counterclaim; denying 123 Motion for Leave to File Sur-Reply. See order for details. Signed by Judge James I. Cohn on 7/26/2011. (prd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 10-61122-CIV-COHN/SELTZER
THE CITY OF FORT LAUDERDALE,
Plaintiff,
v.
HEZZEKIAH SCOTT,
Defendant/Counter-claimant,
VIRGIL BOLDEN, GLORIA BURNELL, THE ESTATE
OF WALTER TIRSCHMAN and KAREN MCNAIR,
Counter-Plaintiffs/Third Party Plaintiffs,
v.
THE CITY OF FORT LAUDERDALE,
Counter-defendant,
ALFRED G. BATTLE, JR., Director of Community
Redevelopment Agency, in his official and individual
capacities, SHAUN DONOVAN, in his official
capacity as Secretary of United States Department
of Housing and Urban Development, and UNITED
STATES DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Third-Party Defendants.
____________________________________________/
ORDER GRANTING IN PART CITY’S MOTION
TO DISMISS SECOND AMENDED COUNTERCLAIM
THIS CAUSE is before the Court upon Alfred Battle and the City of Fort
Lauderdale’s (“City”) Motion to Dismiss Counter-Plaintiffs’ Second Amended
Counterclaim [DE 113], the Counter-Plaintiffs’ Response [DE 117], the CounterDefendants’ Reply [DE 120], and Counter-Plaintiffs’ Motion for Leave to File Sur-Reply
[DE 123]. The Court has considered all of the filings in this case, and is otherwise fully
advised in the premises.
I. BACKGROUND
This case originated in the Circuit Court in and for Broward County, Florida, as
an action by the City of Fort Lauderdale (“City”) to foreclose a Special Master Order and
Claim of Lien on non-homestead real property owned by Defendant/Counter-Plaintiff
Hezzekiah Scott. Scott and four other property owners (hereinafter “Counter-Plaintiffs”)
filed an Amended Counterclaim asserting various claims against the City and Alfred G.
Battle, Jr. (“Battle”), individually and as Director of the City’s Community
Redevelopment Agency (collectively, “Counter-Defendants”). This Court granted the
Counter-Defendants’ motion to dismiss in part, dismissing some claims, and allowing
leave for Counter-Plaintiffs to file another amended counterclaim. Counter-Plaintiffs
filed an amended counterclaim [DE 105], followed by a Notice of Errata containing a
similar version of the counterclaim correcting certain numbering [DE 106]. This
document is entitled “Second Amended Counterclaim.” The Court will refer to the
document at docket entry 106 simply as the “Counterclaim.”
At the outset, the Court notes that Counter-Plaintiffs continue to include pages of
statutory explanations that are unnecessary in a pleading required to have sufficient
factual allegations. See Counterclaim, ¶¶ 16-30 [DE 106]. In addition, several claims in
the Counterclaim repeat the same allegations verbatim. See e.g. Counts VIII and IX;
see also Counts I, XIII, XIV and XV. At the same time, in several instances CounterPlaintiffs do not specify the particular subsections of the comprehensive federal housing
2
statutes they alleged have been violated.1
In general, the Counterclaim alleges that the City and Battle engaged in
unconstitutional code enforcement operations in the Northwest portion of the City of
Fort Lauderdale against Black property owners to obtain their property through a fine
and foreclosure scheme, fraudulently obtained federal funds by certifying to HUD that
the City was complying with HUD’s mandates to use the funds to help low and middle
income families obtain housing, and then using the federal funds to redevelop the
Northwest portion to the benefit of high-end developers in violation of federal statutes.2
The Counterclaim further alleges that the City violated the Fifth and Fourteenth
Amendments to the United States Constitution by denying Counter-Plaintiffs their rights
of substantive due process, procedural due process and equal protection (Section 1983
claims); that the City violated various provisions of the federal Fair Housing Act (“FHA”)
and Housing and Community Development Act (“HCDA”); that the City violated Florida
statutes governing code enforcement and committed the common law tort of fraud; and
that the City violated a prior settlement agreement in a related case, Velva Turner, et al.
v. City of Fort Lauderdale, Case No. 06-61635-Civ-Ungaro [DE 101-2 in that case].
II. ANALYSIS
Counter-Defendants move to dismiss sixteen of the twenty-one claims in the
Counterclaim. The Court’s previous order directed Counter-Plaintiffs to replead all of
1
The Second Amended Counterclaim consists of 21 claims, 81 pages and 275
paragraphs, while the prior version contained 20 claims, 33 pages and 142 paragraphs
[DE 12].
2
By separate order, this Court dismissed the claims against the Federal
Counter-Defendants for lack of standing and lack of subject matter jurisdiction [DE 91].
3
their claims, though the Court signaled that the claims based upon Section 1983 were
sufficiently stated. The Court will proceed to analyze the claims in the order presented
by Counter-Defendants.
A. Motion to Dismiss Standard
As noted in this Court’s prior Order, to survive a motion to dismiss, a complaint
must contain factual allegations which are “enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Bell Atlantic 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 plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. Taking the facts as true,
a court may grant a motion to dismiss when, “on the basis of a dispositive issue of law,
no construction of the factual allegations will support the cause of action.” Marshall Cty.
Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). In
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009), the Supreme Court further stated
that a court need not accept legal conclusions as true, but only well-pleaded factual
allegations are entitled to an assumption of truth.
As the Court has previously stated, a pleading must also comply with Fed. R.
Civ. P. 8(a)(2) by setting forth a “short and plain statement of the claim showing that the
pleader is entitled to relief,” and with Fed. R. Civ. P. 10(b), which requires a plaintiff to
have only one claim per count in a complaint. Anderson v. District Board of Trustees of
Central Florida Community College, 77 F.3d 364, 366-67 (11th Cir. 1996). These rules
4
ensure due process with proper notice as to what claims are actually being alleged
against each defendant. Defendant argues that Plaintiff has again failed to comply with
these rules as to certain claims discussed below.
B. Fraud Claims
The City alleges that Counter-Plaintiffs have failed to state a claim for fraud in
Counts I, V, and XXI. In those claims, Counter-Plaintiffs allege that the City’s
certifications to HUD were fraudulent when made, that the City did not comply with
certain provisions of the HCDA with regard to an analysis of impediments to fair
housing, that the City misused federal funds by improperly certifying that its housing
activities were consistent with existing Plans, and that the HUD Inspector General’s
Audit found these violations but the City failed to correct them.
The elements of a fraud claim include: “(1) a false statement concerning a
material fact; (2) the representor's knowledge that the representation is false; (3) an
intention that the representation induce another to act on it; and, (4) consequent injury
by the party acting in reliance on the representation.” Johnson v. Davis, 480 So.2d 625,
627 (Fla. 1985). Moreover, Rule 9(b)of the Federal Rules of Civil Procedure provides
that “[i]n all averments of fraud . . . the circumstances constituting fraud . . . shall be
stated with particularity.” Fed. R. Civ. P. 9(b). The particularity requirement of Rule
9(b) serves an important purpose in fraud actions by “alerting defendants to the precise
misconduct with which they are charged and protecting spurious charges of immoral
and fraudulent behavior.” Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir.
2001) (internal quotation marks omitted).
The City argues that Counter-Plaintiffs have not alleged that they relied or acted
5
in reliance on the statements the City made to HUD. In other words, no fraud was
committed directly upon Counter-Plaintiffs. Rather, the City suggests that these claims
as pled are disguised False Claims Act allegations, regarding alleged misdeeds of
federal funds by the City. Counter-Plaintiffs attempt to rely upon Kingston Square
Tenants Ass'n v. Tuskegee Gardens, Ltd., 792 F.Supp. 1566 (S.D. Fla. 1992).
However, their arguments made here were specifically rejected by the Court upon
similar facts:
The Plaintiffs contend, among other things, that Defendants individually
and/or conspired together to submit false applications to HUD for Section
8 funds. These monthly applications were false in that they stated that the
housing units at Kingston were “decent, safe and sanitary.” HUD grant
money was then allegedly used by the Defendants for purposes other
than the repair and maintenance of Kingston causing the Plaintiffs to
suffer from “deficient living conditions.”
Kingston, 792 F.Supp. at 1578.3 The Court then concluded that because HUD was the
target of the alleged fraud, and not plaintiffs, a RICO claim could not be maintained.4
Likewise in this action, the Counterclaim allegations, if taken as true, show only that the
3
In a different section of the decision, the Court allowed the tenants to proceed
with a fraudulent inducement claim against private landlords with regard to the leases
between the tenants and the defendant landlord. Kingston at 1576. This ruling does
not support Counter-Plaintiffs’ argument here, because the City’s certifications were
made to HUD, not directly to Counter-Plaintiffs. The Court in Kingston also rejected the
theory of being a third-party beneficiary to HUD’s agreements with landlords. Id. 1573.
4
Counter-Plaintiffs’ counsel seeks to buttress her interpretation of Kingston by
pointing out that she was also counsel for the plaintiffs in Kingston. See CounterPlaintiffs’ Motion for Leave to File Sur-Reply at p. 3 [DE 123]. Nonetheless, by citing to
Kingston at page 2 of her response to the motion to dismiss, counsel is implicitly
misrepresenting that Kingston supports her legal argument. While it shares some facts
with the present case, Kingston specifically rejects the argument presented here by
Counter-Plaintiffs’ counsel, namely that certifications made to a third-party government
entity can suffice to sustain a fraud claim by a different party.
6
City may have defrauded HUD. Therefore, Counter-Plaintiffs cannot legally show that
they suffered injury in reliance on the City’s false representations made to HUD.
C. Federal Statutory Claims
In Count XIII, Counter-Plaintiffs allege that the City has violated their rights under
the “Housing and Community Development Act.” Counter-Plaintiffs repeat their
allegations that the City did not comply with certain provisions of the HCDA with regard
to an analysis of impediments to fair housing, that the City misused federal funds by
improperly certifying that its housing activities were consistent with existing plans, and
that the HUD Inspector General’s Audit found these violations but the City failed to
correct them. Counterclaim, ¶¶ 214-226. As the City asserts, this claim fails because
there is only a limited private right of action to enforce particular provisions of the
HCDA, and Counter-Plaintiffs have not specified a particular provision of that Act under
which they purport to sue the City. In Nabke v. U.S. Dept. of Housing and Urban Dev.,
520 F. Supp. 5, 8-9 (W.D. Mich. 1981), the Court found no private right of action under
42 U.S.C. § 5309 for alleged misuse of funds from a block grant for community
development. Counter-Plaintiffs rely upon Price v. City of Stockton, 390 F.3d 1105,
1111-1113 (9th Cir. 2004), which did hold that a private right of action exists under 42
U.S.C. §§ 5304(d)(2)(a)(iii) & (k) with regard to “particular relocation assistance benefits
that grantees ‘shall’ provide to individuals displaced by federally funded acquisition or
rehabilitation activities. . . .” However, no private right of action exists under 42 U.S.C.
§§ 5304(d)(2)(a)(i) & (ii), with respect to the mandate placed upon governmental
agencies for one-for-one replacement of occupied and vacant occupiable low and
moderate income housing units, designed to keep housing affordable for low and
7
moderate income persons. Price, 390 F. 3d at 1113. The Counterclaim does not
allege the facts required to maintain the limited claim recognized in Price. Rather, the
Counterclaim continues to broadly allege wrongdoing by the City with regard to its
failure to implement proper fair housing policies and misuse of federal funds, for which
no private right of action is recognized. Counter-Plaintiffs’ lack of pleading which
statutory provision therefore fails to put Counter-Defendants on sufficient notice Rule 8
and Rule 10 because only a limited number of particular provisions of the HCDA allow
for a private right of action.
In Count XIX, Counter-Plaintiffs allege an “implied right of action” under 24
C.F.R. § 85.40 and § 570.506 for Counter-Defendants’ failure to properly use federal
funds and to maintain records. The City repeats its citations in support of dismissal for
the lack of a private right of action regarding the use of housing grants. CounterPlaintiffs rely upon Estevez v. Cosmopolitan Associates LLC, 2005 WL 3164146
(E.D.N.Y. 2005), for the proposition that a private right of action exists under federal
housing laws. However, the Estevez decision found a private right of action from 42
U.S.C. § 1437f(t), which specifically concerns the rights of tenants in Section 8 housing.
In Count XIX of this action, Counter-Plaintiffs allege a private right of action under
regulations, not a statute, that have little if anything to do with Section 8 funds. The
Court agrees with Counter-Defendants that no private right of action exists under 24
C.F.R. § 85.40 and § 570.506.
Similarly, the claims in Counts VIII and IX, which are verbatim to each other, do
not reference a specific section of federal law, citing generally to the “Fair Housing Act,
42 U.S.C. §§ 3601-3619" and “Title VIII of the Civil Rights Act.” These claims allege
8
both the City’s failure to perform a meaningful “analysis of the impediments to fair
housing” (hereinafter, “AI”), improper use of “exclusionary zoning,” “block-busting,” and
“redlining,” and use of “the illegally and target code enforcement actions.”
Counterclaim, ¶¶ 176-184. Defendants contend these claims violate Rule 10(b) and the
Court’s prior order, and should be dismissed with prejudice because Plaintiff has had
repeated opportunities to properly plead such claims.
Counter-Plaintiffs argue that they have met the requirements of Rule 10(b) by
adding specific factual allegations and putting Counter-Defendants on notice as to what
particular statutory provision is being alleged in each count.5 The Court disagrees. The
factual allegations in the Counterclaim are conclusory and there are no particular
statutory provisions alleged. In Count VIII, reference to “the Fair Housing Act, 42
U.S.C. §§ 3601-3619" is not sufficient notice of what claim is plead. In another
example of either poor draftsmanship, sloppy legal research, or a lack of understanding
of federal housing laws, Count IX seeks exactly the same relief, as “Title VIII of the Civil
Rights Act” is the Fair Housing Act. Dixon v. The Hallmark Companies, Inc., 627 F.3d
849, 852 (11th Cir. 2010). Counter-Plaintiffs have again violated Rule 10(b) and failed
to properly plead a claim for relief in Counts VIII and IX.6 These claims will be
dismissed.
5
Counter-Plaintiffs also argue that “[t]he court already considered these
arguments when it ruled upon [the version of the claim in the Amended Counterclaim].
If this is a suggestion that Counter-Defendants waived an argument, it is simply wrong.
6
As noted above, it is necessary to specify the particular statutory provision that
a party is suing under because only certain parts of the federal housing statutes provide
for a private cause of action.
9
A similar fate is appropriate for the claims in Counts XIII, XIV and XV. These
claims repeat the allegations in the fraud claim in Count I. Defendants make the same
argument that these claims violate Rule 10(b) and the Court’s prior order, and should
be dismissed with prejudice because Plaintiff has had repeated opportunities to
properly plead such claims. Count XIII alleges a violation of the “Housing and
Community Development Act,” Count XIV alleges a violation of the “Fair Housing Act,”
and Count XV alleges a violation of “Title VI of the Civil Rights Act.” However, no
particular statutory provisions are alleged as being violated. As these statutes have
multiple sections within them, and not all of which provide for a private right of action,
these claims are insufficiently plead and should be dismissed.
Turning next to Counts XVII and XVIII, again Counter-Defendants argue that the
claims fail to comply with Rule 10(b). While Counter-Plaintiffs have added some factual
allegations and divide what had been a single claim in their prior pleading, it is
insufficient to entitle a claim an “Implied Right of Action under 42 U.S.C. Section 3601
et seq., 3604, 3608,” or “Implied Right of Action under 42 U.S.C. Section 5304, 2000A
et seq.,” and not specify in the claim under which particular section of law a party is
proceeding. In addition, the factual allegations within Counts XVII and XVIII are
conclusory. Therefore, these claims will also be dismissed.
10
D. State Law Claims7
In Count IV, Counter-Plaintiffs allege that the City violated the legislative intent of
Chapter 162 by imposing daily fines as a means to displace low-income minorities
through the code enforcement system. Chapter 162 “authorizes counties and
municipalities to create code enforcement boards to enforce local codes and
ordinances which have no criminal penalties, where a pending or repeated violation
continues to exist.” City of Gainesville Code Enforcement v. Lewis, 536 So. 2d 1148,
1150 (Fla. Dist. Ct. App. 1988). The City contends that Counter-Plaintiffs have failed to
put it on sufficient notice as to what provision of Chapter 162 the City allegedly violated.
While it is true that Counter-Plaintiffs do not state within Count IV the particular
statutory section they allege was violated, they do reference particular subsections of
Chapter 162 earlier in the Counterclaim. See ¶¶ 18-20. Nonetheless, there does not
appear to be any provision of Chapter 162 that allows an aggrieved party to file a
separate claim against a municipality for not following Chapter 162.8 As a federal
court, this Court must be particularly careful when inferring a new state law cause of
7
The claim in Count XVI does not allege a particular cause of action, but rather
seeks the remedy of injunctive relief. Counter-Plaintiffs have not specifically moved for
a preliminary injunction under Fed. R. Civ. P. 65, and on the record as it stands now,
have not met their burden to show a substantial likelihood of success on the merits.
This claim will therefore be dismissed, though Counter-Plaintiffs retain the right to seek
the remedy of injunctive relief.
8
An aggrieved party may appeal any final administrative orders to state circuit
court. Fla. Stat. § 162.11. Counter-Plaintiffs allege that they were prevented from
doing so. The fact that a party may raise failure to comply with provisions of Chapter
162 as a defense to a code enforcement action does not mean that an affirmative claim
can be brought against a municipality under Chapter 162, as there is no provision for an
award of damages to a successful plaintiff.
11
action. Swerhun v. Guardian Life Ins. Co. of America, 979 F.2d 195, 198 (11th Cir.
1992) (citing Farlow v. Union Cent. Life Ins. Co., 874 F.2d 791, 795 (11th Cir.1989)).
Therefore, the Court will dismiss Count IV for failure to state a claim.9
Counter-Defendants make a similar argument in favor of dismissal of Count XX,
labeled “Implied right of action under Florida Statutes Chapters 162 and 163.” The
Court reaches the same decision as with Count IV. Count XX is dismissed for failure to
specify a claim under Rule 10(b) by referencing two entire chapters of Florida Statutes,
and for failure to state a claim as there is no private right of action under these
Chapters.
E. Regulatory Takings Claim
The City next contends that Counter-Plaintiffs have failed to sufficiently allege a
regulatory takings claim of property without just compensation. The City argues that the
relevant federal case law for a § 1983 claim for a taking under the Fifth and Fourteenth
Amendments requires Counter-Plaintiffs to show that they have exhausted all available
state law remedies. Counter-Plaintiffs argue that they have alleged a permanent,
physical occupation of their property, and therefore do not need to exhaust all state law
remedies. Upon reviewing Count XII, Counter-Plaintiffs allege that Burnell, Tirschman
and Bolden’s properties were demolished without compensation, thus alleging a
physical occupation of their property. Counterclaim, ¶ 209. In addition, they allege
imposition of fines and levies that exceed the value of their property. Id. ¶ 204.
9
Some of the allegations within Count IV may support the claim in Count II
under § 1983 for a procedural due process violation.
12
In the Court’s February 28 Order, the Court stated that:
Counter-Plaintiffs fail to sufficiently distinguish the United States Supreme
Court’s holding that a federal court cannot entertain a takings claims
under § 1983 “unless or until the complaining landowner has been denied
an adequate postdeprivation remedy.” City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 721 (1999). The Supreme Court
suggests that a decision on whether a remedy is adequate is an issue for
the Court to decide. Id., 722. That decision cannot be made on the
record currently before the Court, as the information regarding the lack of
postdeprivation remedies is not explained in the Amended Counterclaim.
In reasserting a takings claim, Counter-Plaintiffs will need to ensure they
have met all of the elements required by the United States Supreme Court
for such claims, even if brought under § 1983.
Counter-Plaintiffs have alleged that the City cut off any post deprivation remedy by
threatening to arrest Scott if he appeared at a hearing to contest his fines and by failing
to honor the settlement agreement (see below) in a prior action regarding proper notice
of such hearings. Counterclaim ¶¶ 206, 208. The Court concludes that the takings
claim in Count XII sufficiently states a claim under § 1983.10
F. Breach of Settlement Agreement
In Count VII, Counter-Plaintiffs again allege a claim for breach of the settlement
agreement in the prior action of Velva Turner v. City of Fort Lauderdale, Case No. 0561635. Memorandum of Settlement, Exhibit A to Second Amended Counterclaim [DE
106]. This claim focuses on the allegedly defective notices that were the subject of the
Turner settlement. The City asserts that the Counter-Plaintiffs, other than McNair, are
not proper parties for this claim as they were not parties to the prior action and no class
was certified in that action. The City also contends that Count VII is apparently based
10
This decision is without prejudice to being revisited at the summary judgment
stage of the proceeding, upon proper motion.
13
upon forms that pre-dated the Settlement Agreement, as Exhibit B to the Counterclaim
is dated in 2006, whereas the settlement was signed February 7, 2007, and the
Settlement Agreement is only prospective as to its non-monetary provisions.11
In response, Counter-Plaintiffs note that they have complied with this Court’s
direction to specify which Counter-Plaintiff seeks to enforce which provision of the
agreement. Counter-Plaintiffs also contend that because the City agreed in the
Settlement that it “will not object to Plaintiffs seeking Court approval of the Parties’
settlement for the purposes of the non-certified putative class members,” that it is
precluded from making this standing argument at this time. See “Memorandum of
Settlement,” ¶ 11. Upon a review of the tortured history of the Settlement Agreement, it
appears that the City never did object to approval of the settlement – rather, the District
Judges before whom Counter-Plaintiffs presented the issue concluded that they lacked
jurisdiction to provide relief. Case No. 05-61635-Civ at DE’s 107 and 112 and Case No.
08-60777-Civ at DE 24.12
This Court concludes that only McNair has standing to bring this breach of
contract claim, as no class was ever certified that would allow the other CounterPlaintiffs to enforce the Settlement Agreement. As to the Settlement Agreement itself,
11
The Court may consider documents referred to (or attached) by a plaintiff in a
complaint which are central to the plaintiff’s claim and undisputed as to authenticity for
purposes of a motion to dismiss without conversion of the motion to dismiss into a
motion for summary judgment. SFM Holdings, Ltd. v. Banc of America Securities, LLC,
600 F.3d 1334, 1337 (11th Cir. 2010); Maxcess, Inc. v. Lucent Technologies, Inc., 433
F.3d 1337, 1340, n.3 (11th Cir. 2005). There is no dispute as to the authenticity of the
Memorandum of Settlement in Case No. 05-61635.
12
This Court previously concluded that it would have supplemental jurisdiction
over this breach of contract action if a proper federal claim is stated.
14
the plain language of the agreement requires the City to “change,” “delete,” and “revise”
its code enforcement forms, and gives the City ninety days to do so. Memorandum of
Settlement, ¶¶ 1-3, 10. It would be physically impossible for such changes to be made
retroactively, and unreasonable to interpret the Agreement any other way. Thus, this
claim may proceed under this interpretation of the Agreement.
G. Individual Defendant Battle
Third-Party Defendant Battle, an individual who has a right to claim qualified
immunity to the § 1983 claims, again argues that the Counterclaim fails to state a claim
as to him in his individual capacity by not identifying which claims are pled against him.
Counter-Plaintiffs respond by listing the twenty-one paragraphs in the Counterclaim’s
“Statement of Facts” which specifically relate to Battle. These paragraphs are then
incorporated into each count.
As the Court previously stated, under the Iqbal standard, Counter-Plaintiffs must
allege what actions Battle himself personally took to violate Counter-Plaintiffs’
constitutional rights. A supervisor is not vicariously liable under § 1983 for the acts of
subordinates. Doe v. School Bd. of Broward County, 604 F.3d 1248, 1266 (11th Cir.
2010). Rather, a plaintiff must show that the supervisor personally participated in the
alleged constitutional violation or show a causal connection between the supervisor’s
actions and the alleged constitutional violation. Id. This connection requires either “a
history of widespread abuse [which] puts the responsible supervisor on notice of the
need to correct the deprivation, and he fails to do so,” or, when the “supervisor’s custom
or policy results in deliberate indifference to constitutional rights.” Id. (quoting Hartley v.
Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). This standard for supervisor liability is
15
“extremely rigorous.” Braddy v. Fla. Dep’t of Labor & Employment Sec., 133 F.3d 797,
802 (11th Cir. 1998). Counter-Plaintiffs have failed to sufficiently allege supervisory
liability as to Battle.
Turning next to whether Battle’s personal participation as to the remaining claims
has been sufficiently plead, the alleged actions by him only relate to the § 1983 claim in
Count XI. For example, in the procedural due process (Count II) and the substantive
due process (Count III) claims, Counter-Plaintiffs allege that the notices used by “the
City” and the fine scheme process used by “the City” violated the United States
Constitution. Counterclaim ¶¶ 122, 127. Battle is not the party issuing notices or
collecting fines. Next, in Count VI regarding their § 1983 race discrimination
allegations, Counter-Plaintiffs allege that “the City” took certain actions to displace and
harass black residents. Id. ¶¶ 165-168. As to Count VII, Battle was not a party to the
Turner Settlement Agreement and cannot personally breach that agreement. As to
Count X, it is “the City” that is alleged to violate the Fair Housing Act. Id. ¶ 188.
Similarly, in Count XII, it is “the City” that is alleged to have made decisions that led to
an alleged taking of Counter-Plaintiffs’ property. It is only as to Count XI, an equal
protection claim, did Counter-Plaintiffs sufficiently allege that Battle personally took
actions that allegedly violated Counter-Plaintiffs’ constitutional rights.
16
III. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.
Alfred Battle and the City of Fort Lauderdale’s Motion to Dismiss CounterPlaintiffs’ Second Amended Counterclaim [DE 113] is hereby GRANTED in part
and DENIED in part, as explained above;
2.
The City shall file an Answer to Counts II, III, VI, VII, X, XI and XII of the Second
Amended Counterclaim at docket entry 106 by August 4, 2011;
3.
Alfred Battle shall file an Answer to Count XI of the Second Amended
Counterclaim at docket entry 106 by August 4, 2011;
4.
Counter-Plaintiffs’ Motion for Leave to File Sur-Reply [DE 123] is DENIED,
though the Court has considered the arguments contained therein in entering
this Order.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 25th day of July, 2011.
copies to:
counsel of record on CM/ECF
17
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