Watkins v. Korenic

Filing 4

FINAL ORDER OF DISMISSAL WITH PREJUDICE. The case is CLOSED. Signed by Judge James I. Cohn on 4/24/2014. (sry)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-60941-CIV-COHN
ERIC WATKINS,
Plaintiff,
v.
D. KORENIC, Broward Sheriff Officer,
Defendant.
________________________________/
FINAL ORDER OF DISMISSAL WITH PREJUDICE
THIS CAUSE is before the Court upon Plaintiff’s pro se Complaint [DE 1] and
Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs
[DE 3] (“Application”). The Court has carefully reviewed the Complaint and Application
and is otherwise fully advised in the premises.
On January 30, 2014, Plaintiff filed an earlier pro se action against Defendant,
purporting to assert a claim under 42 U.S.C. § 1983. See Watkins v. Korenic, Case No.
14-60257-CIV-COHN, DE 1 (S.D. Fla. filed Jan. 30, 2014) (“First Complaint”). In that
case, Plaintiff alleged that Defendant had violated Plaintiff’s First Amendment rights by
threatening to arrest him for trespass if he continued to sing an anti-gay song on private
property. See id. at 2-3. Conducting a screening of the First Complaint in accordance
with 28 U.S.C. § 1915(e)(2)(B), this Court found that Plaintiff had failed to state a claim
for violation of § 1983:
Plaintiff alleges that he was on private property at the time
that the Defendant made the alleged threat to have him
arrested. Compl. at 2. It is well-recognized that the First
Amendment generally does not provide protection for activity
undertaken on private property. Geibels v. City of Cape

Coral, 861 F. Supp. 1049, 1052 (M.D. Fla. 1994) (citations
omitted); see also Laterza v. Lowe’s Home Centers, Inc.,
No. 10-81586-CIV, 2011 WL 855304, at *3 (S.D. Fla. Mar. 9,
2011). Thus, Plaintiff has failed to state a claim upon which
relief can be granted.
Case No. 14-60257, DE 6 at 2-3 (Order Dismissing Action). The Court therefore
dismissed the First Complaint without prejudice, closed the case, and later denied
reconsideration. See id. at 3; DE 8 (Order Den. Pl.’s Mot. for Recons.).
On April 22, 2014, Plaintiff filed his present Complaint (“Second Complaint”).1
The Second Complaint alleges substantially the same facts as the First Complaint. But
instead of relying expressly on the First Amendment, the Second Complaint claims that
Defendant violated Plaintiff’s “constitutional right to access and use private property
open to the general public.” DE 1 at 4. Plaintiff, however, fails to explain how
Defendant violated this right other than by deterring Plaintiff from singing an anti-gay
song on private property. Indeed, Plaintiff’s central theory—that Defendant’s threat to
arrest him infringed his free-speech rights—remains unchanged. See id. (asserting that
because of Defendant’s conduct, “Plaintiff felt threatened and was intimidated and
stopped singing the song on the private property”). As discussed in the Court’s Order
dismissing the First Complaint, these facts do not state a valid § 1983 claim. Plaintiff’s
Second Complaint therefore must be dismissed for failure to state a claim on which
relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
Although courts “should freely give leave [to amend a pleading] when justice so
requires,” Fed. R. Civ. P. 15(a)(2), dismissal with prejudice is appropriate “if a more
carefully drafted complaint could not state a claim.” Ziemba v. Cascade Int’l, Inc., 256
1

The same day, Plaintiff filed a Notice of Appeal [DE 9] of the Order denying
reconsideration in Case No. 14-60257.
2

F.3d 1194, 1213 (11th Cir. 2001) (internal quotation marks omitted). Here, as the Court
has now twice held, Plaintiff’s free-speech claim is legally groundless. And no amount
of re-drafting can cure that basic problem. Thus, the Court will dismiss the Second
Complaint with prejudice.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.

Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the above-styled action is DISMISSED
WITH PREJUDICE;

2.

Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or
Costs [DE 3] is DENIED; and

3.

The Clerk of Court shall CLOSE this case and DENY AS MOOT all other
pending motions.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,

Florida, this 24th day of April, 2014.

Copies provided to:
Eric Watkins, pro se
1 NW 33rd Terrace
Lauderhill, FL 33311

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