Shillingford, II v. Rolly Marine Service, Inc. et al

Filing 32

ORDER granting 17 Motion to Dismiss 1 Complaint for Failure to State a Claim; Dismissing without prejudice 1 Complaint; Amended Complaint due by 12/15/2014; denying as moot 22 Motion to Stay Discovery and Discovery Request in 24 ; denying as moot 31 Motion for Clarification or Amendment. Signed by Judge Beth Bloom on 11/24/2014. (ls)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 14-CIV-61936-BLOOM
CLINTON K .SHILLINGFORD, II,
Plaintiff
v.
ROLLY MARINE SERVICE, INC,
SHERYL A. LOPEZ,
SUE E. ROCKS,
SANDRA LATTA,
GREG POULOS,
Defendants.
______________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE came before the Court on Defendants Rolly Marine Service Company,
Sheryl A. Lopez, Sue E. Rocks, Sandra Latta and Greg Poulos’ (“Defendants”) Motion to
Dismiss, ECF No. [17] (the “Motion”). The Court has reviewed the Motion, all supporting and
opposing filings, and the record in this case, and for reasons set forth below, in part grants and in
part denies the Motion.
I.

BACKGROUND

Plaintiff Clinton K. Shillingford (“Plaintiff”), proceeding pro se, filed his Complaint, ECF
No. [1] on July 11, 2014. Plaintiff, who was previously employed by the Defendant corporation
and with the individual Defendants, makes a series of factual allegations concerning racist, illegal
and other improper behavior on the part of Defendants. These include the following:1

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The Court has considered additional facts in Plaintiff’s Response to the extent they
clarify allegations in the Complaint. See McCroan v. Morgan, 2014 WL 1572690, at *3 (N.D.
Fla. Apr. 16, 2014) (“[M]aterials considered on a motion to dismiss under Fed. R. Civ. P.
12(b)(6) are generally limited to the complaint and attached exhibits, the Court can consider



Violation of “EPA Regulations” by “dumping ‘wash down tank water’ that comes
from pressure washing boat bottoms.”



Use of “lead based bottom paint on customer’s [sic] yachts.”



Possession of a firearm at the workplace “in violation of federal law” and
improper discharge a firearm on the workplace premises.



“Selling working firearms, including numerous assault rifles, without [] having a
Federal Firearms License, from the A.T.F.” at the workplace during normal
business hours.



Display of “racist political propaganda” targeting the President of the United
States, Barack Obama (including, e.g., a photo of the President holding a banana,
and a used gun range target transposed with the President’s image).



Maintenance of a “racially biased and hostile environment” by, e.g., the use of
racist language directed against Plaintiff; forcing Plaintiff to store his lunch in a
refrigerator which contained dangerous chemicals “simply because he was black,
and it was known no Caucasian employees stored any of their food or drink”
there; and hysterical reaction – what Plaintiff describes as “utilizing the ‘Big
Black Man’ syndrome” – to Plaintiff’s attempt to address perceived workplace
discrimination issues.



Maintenance of “an ongoing racially discriminative company policy” to
manipulate the assignment of overtime duties to Plaintiff’s detriment, and deny
Plaintiff overtime pay, on the basis of Plaintiff’s race and in retaliation for
Plaintiff’s complaints about the aforementioned behavior.



Threat of termination and wrongful termination of Plaintiff in retaliation for
raising issue of racist prejudice in the workplace.

Defendants filed the instant Motion to dismiss Plaintiff’s Complaint for failure to state a
cause of action upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), and have
additionally requested that the Court sanction Plaintiff by enjoining him from filing further civil
actions without representation. Plaintiff responded, ECF No. [19], and Defendants Replied, ECF
No. [26].2

Plaintiff’s response to the extent they clarify the allegations in his complaint.” (citing Pegram v.
Herdrich, 530 U.S. 211, 230, n.10 (2000) (using plaintiff’s response brief to clarify allegations in
her complaint).
2
Plaintiff improperly submitted supplemental briefing, ECF No. [29], which the Court
will not consider.
2

II.

DISCUSSION

A pleading in a civil action must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy the Rule 8
pleading requirements, a complaint must provide the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512,
(2002). While a complaint “does not need detailed factual allegations,” it must provide “more
than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that the Rule 8(a)(2) pleading standard “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”).

Nor can a complaint rest on “‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)). The Supreme Court has emphasized that “[t]o survive a
motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570); see also
Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir. 2010).
When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s
allegations as true and evaluate all plausible inferences derived from those facts in favor of the
plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee
Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir.
2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D.
Fla. 2009) (“On a motion to dismiss, the complaint is construed in the light most favorable to the
non-moving party, and all facts alleged by the non-moving party are accepted as true.” ); Iqbal,
556 U.S. at 678. A court considering a Rule 12(b) motion is generally limited to the facts
contained in the complaint and attached exhibits, but may also consider documents referred to in

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the complaint that are central to the claim and whose authenticity is undisputed. See Wilchombe
v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc. v. Lucent Technologies,
Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners of the
complaint may still be considered if it is central to the plaintiff’s claims and is undisputed in
terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). While
the court is required to accept as true all allegations contained in the complaint, courts “are not
bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S.
at 555; Iqbal, 556 U.S. at 678. “Dismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.’” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
“A pro se litigant’s pleadings must be construed more liberally than those pleadings
drafted by attorneys.” Jarzynka v. St. Thomas Univ. of Law, 310 F. Supp. 2d 1256, 1264 (S.D.
Fla. 2004) (citing Haines v. Kerner, 404 U.S. 519, 520-521 (1972) and Powell v. Lennon, 914
F.2d 1459, 1463 (11th Cir. 1990) (“In the case of a pro se action . . . the court should construe
the complaint more liberally than it would formal pleadings drafted by lawyers”); see Albra v.
Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (explaining that “we are to give liberal
construction to the pleadings of pro se litigants”).
However, “this leniency does not give a court license to serve as de facto counsel for a
party . . . or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR
Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations
omitted). “[D]espite liberal pleading standards for pro se litigants, the Court cannot be forced to
speculate on what someone is complaining about.” Grady v. Georgia Dep’t of Correction, 2010
WL 322881, at *2 (S.D. Ga. Jan. 27, 2010). The Court cannot simply “fill in the blanks” to infer

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a claim. See Brinson v. Colon, 2012 WL 1028878, at *1 (S.D. Ga. Mar. 26, 2012); Bivens v.
Roberts, 2009 WL 411527, at *3 (S.D. Ga. Feb.18, 2009) (“judges must not raise issues and
arguments on plaintiffs’ behalf, but may only construe pleadings liberally given the linguistic
imprecision that untrained legal minds sometimes employ”) (citing Miller v. Donald, 541 F.3d
1091, 1100 (11th Cir. 2008)). “[I]t is not the Court’s duty to search through a plaintiff’s filings
to find or construct a pleading that satisfies Rule 8.” Sanders v. U.S., 2009 WL 1241636, at *3
(N.D. Ga. Jan. 22, 2009).
Here, Plaintiff has quite literally failed to state a cause of action. Plaintiff has made
several well-stated factual allegations which could eventually support one or more causes of
action. And the Complaint does make reference to both civil RICO and civil rights violations.
But Plaintiff has not articulated a claim or theory of the case. The Court cannot match Plaintiff’s
factual allegations to claims not presented. Nor would Rule 8 be served by forcing Defendants
to do so.
Plaintiff’s Complaint amounts to an inverse shotgun pleading. The Eleventh Circuit
defines a shotgun complaint as containing “several counts, each one incorporating by reference
the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the
first) contain irrelevant factual allegations and legal conclusions.” Strategic Income Fund, LLC
v. Spear, Leeds & Kellogg Corp., 205 F.3d 1293, 1295 (11th Cir. 2002); see also Pelletier v.
Zweifel, 921 F.2d 1465, 1517-18 (11th Cir. 1991) (describing such pleadings as “replete with
factual allegations that could not possibly be material to any of the causes of action they assert”);
Osahar v. U.S. Postal Service, 297 Fed. App’x 863, 864 (11th Cir. 2008) (term also refers to
pleadings that are “replete with factual allegations and rambling legal conclusions”); Davis v.
Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979-80 (11th Cir. 2008) (condemning shotgun
pleading that bunched together “untold causes of action” in one count). Here, the Complaint

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contains a series of factual allegations which paint a plausible picture of improper activity and a
hostile workplace. But Plaintiff has not set forth any claims which could make that conduct
actionable.
Accordingly, Plaintiff’s Complaint is dismissed with leave to amend. See, e.g., Taylor v.
Verizon Florida, Inc., 2008 WL 2943325, at *2 (M.D. Fla. July 30, 2008) (dismissing with leave
to amend where pro se plaintiff’s complaint “d[id] not contain a short plain statement of the
claim, or delineate the alleged causes of action into counts or another organized manner” in
violation of Rules 8(a) and 10(b)); Canty v. Fry’s Electronics, Inc., 736 F. Supp. 2d 1352, 1376
(N.D. Ga. 2010) (dismissing shotgun complaint with leave to amend, explained that “the Eleventh
Circuit has concluded that where a ‘more carefully drafted complaint might state a claim, a pro se
plaintiff must be given at least one chance to amend the complaint before the district court
dismisses the action with prejudice”) (quoting Case v. Riley, 270 Fed. App’x 908, 910 (11th Cir.
2008)); Postell v. Fifth Third Bank, 2013 WL 686972, at *1 (M.D. Fla. Feb. 26, 2013) (dismissing
shotgun pleading by pro se plaintiff without prejudice and with leave to amend); Del Fuoco v. U.S.
Dep’t of Army, 2009 WL 2905911, at *1 (M.D. Fla. Sept. 8, 2009) (same).
The Court will highlight the Complaint’s pleading deficiency with regard to certain
potential causes of action specifically alluded to in Plaintiff’s Complaint and Response and
addressed in part by Defendants.
RICO. “The four elements of civil RICO liability are (1) conduct, (2) of an enterprise,
(3) through a pattern, (4) of racketeering activity.” Palm Beach Cty. Environmental Coal. v.
Florida, 651 F. Supp. 2d 1328, 1348 (S.D. Fla. 2009); (citing Langford v. Rite Aid of Ala., Inc.,
231 F.3d 1308, 1311 (11th Cir. 2000)). “Plaintiffs in such an action must identify and prove a
pattern of racketeering activity, defined as two ‘predicate acts’ of racketeering activity within a
10-year period.” Id. at 1349 (citing 18 U.S.C. § 1961(5)). “The phrase ‘racketeering activity’ is

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defined as any act which is indictable under a lengthy list of criminal offenses,” including any
act or threat involving murder, kidnaping, gambling, arson, robbery, extortion, bribery, mail
fraud, wire fraud, counterfeiting, etc.”

Langford, 231 F.3d at 1312; see also 18 U.S.C.

§ 1961(1). “In order to survive a motion to dismiss, a plaintiff must allege facts sufficient to
support each of the statutory elements for at least two of the pleaded predicate acts.” Palm
Beach, 651 F. Supp. 2d at 1349 (citing Republic of Panama v. BCCI Holdings (Luxembourg)
S.A., 119 F.3d 935, 949 (11th Cir. 1997)).
Plaintiff alleges that Defendants displayed, sold and discharged firearms at their
workplace. But that alone would not suffice to place Defendant’s activity within the ambit of a
civil RICO violation.

Further, allegations concerning violation of EPA regulations and

environmental laws are themselves insufficient to support a civil RICO claim. See Anderson v.
Smithfield Foods, Inc., 209 F. Supp. 2d 1270, 1275 (M.D. Fla. 2002).
Employment Discrimination. Plaintiff’s factual allegations can be read to predicate a
claim for employment discrimination and/or wrongful termination. However, a plaintiff must
first file a charge of discrimination with the Equal Employment Opportunity Commission
(“EEOC”) prior to filing a Title VII action. See Gregory v. Georgia Dep’t of Human Resources,
355 F.3d 1277, 1279 (11th Cir. 2004); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th
Cir. 1970). A plaintiff must also have received statutory notice from the EEOC that he or she
may file suit. See Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989) (“It is clear that a single
individual plaintiff in a civil action under Title VII must satisfy two jurisdictional requisites: (1)
a charge must have been filed with [the] EEOC and (2) the statutory notice must have been
received from [the] EEOC.”). “The purpose of the exhaustion requirement is that the EEOC
should have the first opportunity to investigate the alleged discriminatory practices to permit it to
perform its role in obtaining voluntary compliance and promoting conciliation efforts.” Ramsay

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v. Broward County Sheriff’s Office, 2007 WL 6861073, at *5 (S.D. Fla. May 24, 2007)
(quotations omitted). Here, Plaintiff has not demonstrated that he filed anything with the EEOC,
obtained statutory notice to file a Title VII complaint from the EEOC, and/or that he has
exhausted the EEOC administrative process prior to bringing this action.
Criminal and Statutory Violations. The Complaint also contains factual allegations of
Defendants’ violation of environmental regulations and criminal prohibitions (e.g., relating to
firearm sale and use).

In addition to failing to specify which federal laws or regulations

Defendants are alleged to have violated, Plaintiff has nowhere supported a private right of action
under the statutes upon which he may reply. See Flournoy v. Copley, 2013 WL 5487415, at *2
(M.D. Fla. Sept. 30, 2013) (“The Eleventh Circuit has explained that an implied private right of
action under a federal statute should only be found where there is ‘clear evidence of Congress’s
intent to create a cause of action.’” (quoting McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d
718, 723 (11th Cir. 2002)); Waverly v. Emory Healthcare, Inc., 2013 WL 5755596, at *3 (M.D.
Ga. Oct. 23, 2013) (“criminal statutes do not generally provide a stand-alone private civil cause
of action”); see generally United States ex rel. Pickens v. GLR Constructors, Inc., 196 F.R.D. 69
(S.D. Ohio 2000) (discussing qui tam action under FCA for violation of Clean Water Act by
“discharging oily bilge water into the Ohio River”).
III. CONCLUSION
For the foregoing reasons, Plaintiff’s Complaint is dismissed without prejudice, and
Plaintiff will be afforded an opportunity to amend his complaint to address the deficiencies
explained in this Order.

Defendant’s request for sanctions is not well taken.

Plaintiff’s

allegations are neither frivolous nor, on their face, made in bad faith.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Defendants’ Motion to Dismiss, ECF No. [17], is GRANTED as set forth

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herein.
2.

Plaintiff’s Complaint, ECF No. [1], is DISMISSED without prejudice.

3.

Plaintiff may file an amended complaint on or before December 15, 2014.

4.

Plaintiff’s filing of November 12, 2014 for clarification or amendment, ECF
No. [31] is DENIED as moot to the extent it seeks leave to amend the
Complaint to add the facts or information in that submission.

5.

Defendants’ Motion to Stay Discovery, ECF No. [22], and Plaintiff’s
discovery request in ECF No. [24], are both DENIED as moot. Discovery
will recommence upon Plaintiff’s filing of his amended complaint.
DONE AND ORDERED in Fort Lauderdale, Florida this 24th day of
November, 2014.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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