Humphrey v. Department of Homeland Security et al

Filing 29

ORDER granting in part 14 Motion to Dismiss. Signed by Magistrate Judge John J. O'Sullivan on 9/28/2011. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-20651-CIV-LENARD/O’SULLIVAN
[CONSENT]
KENNETH D. HUMPHREY,
Plaintiff,
v.
JANET NAPOLITANO, Secretary,
United States Department of Homeland
Security, et al.,
Defendants.
_________________________________/
ORDER
THIS MATTER is before the Court on the Defendant’s Motion to Dismiss (DE#
14, 4/27/11). After hearing argument and carefully considering the pleadings, the Court
file and the applicable law, the undersigned recommends that the Defendant’s Motion
to Dismiss (DE# 14, 4/27/11) be GRANTED in part on the grounds set forth below.
Accordingly, it is
ORDERED AND ADJUDGED that
1.

Counts I (race discrimination), III (age discrimination) and V (conspiracy to
obstruct justice) are dismissed without prejudice;

2.

Counts II (retaliation) and IV (False Claims Act and Whistleblower Act) are
dismissed with prejudice in this Court due to the plaintiff’s failure to
exhaust his administrative remedies; and

3.

Counts I through V are dismissed with prejudice as to the defendant,
EEOC, only.

BACKGROUND
The pro se plaintiff, Kenneth D. Humphrey, was employed as a U.S. Customs
and Border Protection Officer from January 2000 to May 2010. On December 8, 2008,
the plaintiff logged an EEO claim against Department of Homeland Security’s (“DHS”)
actors initiating adverse actions against him regarding a November 12, 2008 activity.
On February 22, 2009, he filed a formal EEOC Complaint relating to conduct that took
place in November 2008. On March 18, 2009, his employer notified him that the
following claims were accepted for investigation:
Whether Customs and Border Protection discriminated against
Complainant, CBP Officer, GS-1895-11, assigned to the Miami
International Airport, Miami, FL based on his race/national origin/color
(African American/Black) and age (Date of Birth: April 26, 1945) when: (1)
on or around November 12, 2008, he was removed from field duties with
the Anti-Terrorism Contraband Enforcement Team (AT-CET), assigned
desk duties and not permitted to work overtime in the field; (2) on or
around January 21, 2009, he was notified that his bid rotation was denied;
and (3) on February 1, 2009, he was assigned to Passenger Control.
In its claim construction letter, CBP notified the plaintiff that “[i]f he disagree[d] with the
issues” identified, he was to notify the CBP “in writing within 15 days” and “[i]f no
response was received,” CBP would “assume that [the plaintiff] agree[d] with the issues
and w[ould] proceed with the investigation of the complaint.” Def.’s Motion to Dismiss,
Ex. 2, CBP’s Mar. 18, 2009 Ltr. (DE# 14-1 and 14-2, 4/27/11). The plaintiff did not
respond to the CBP’s claim construction letter, offered no amendments to his formal
EEO complaint, and proceeded with administrative litigation of his EEO claims. On
June 9, 2009, he was permitted to request an official EEOC hearing. On November 16,
2009, an administrative judge from the Miami District of the EEOC issued a decision
without a hearing that determined that the plaintiff failed to prove his claims. DHS
issued a Final Order on December 5, 2010, that adopted the administrative judge’s

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findings.
On February 25, 2011, the plaintiff filed the present action against Janet
Napolitano, Secretary, U.S. Customs and Border Protection (“CBP”), Department of
Homeland Security, and Jaqueline A. Berrien, Chair, U.S. Equal Employment
Opportunity Commission (“EEOC”). (DE# 1, 2/25/11). In his complaint, the plaintiff
alleges five counts. Count I alleges discrimination in violation of the Civil Rights Act of
1964, Equal Employment Opportunities and the Civil Rights Act of 1991. Count II
alleges retaliation in violation of the provisions of the Civil Rights Act of 1964 and the
Federal Employee Anti-Discrimination and Retaliation Act of 2002. Count III alleges
age discrimination in violation of the Age Discrimination in Employment Act of 1967
(“ADEA”) and the Vietnam Era Veterans Readjustment Assistance Act of 1974
(“VEVRAA”). Count IV alleges violations of the False Claims Act and the Whistleblower
Protection Act of 1989. Count V alleges a conspiracy to interfere with civil rights in
violation of the Conspiracy to Obstruct Justice Act. The plaintiff seeks compensatory
and punitive damages as well as injunctive relief.
In Defendants’ Motion to Dismiss (DE# 14, 4/27/11), the defendants seek
dismissal of the complaint in its entirety. The defendants argue six grounds for
dismissal. First, sovereign immunity bars the plaintiff’s claims against the EEOC.
Second, the plaintiff fails to state a claim under the False Claims Act because he is not
bringing an action on behalf of the United States and has not alleged any fraud
committed against the United States. Third, the plaintiff has failed to exhaust his
administrative remedies pursuant to the Whistleblower Protection Act of 1989 and even
if he did, the plaintiff fails to allege any protected disclosure sufficient to state a
whistleblower claim. Fourth, the plaintiff fails to state a claim under the Conspiracy to

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Obstruct Justice Act because he fails to allege any facts to support a “conspiracy” by
two or more people to discriminate against him or individuals in his racial and/or age
classification. Fifth, the plaintiff failed to exhaust his administrative remedies on his
claim of retaliation and even if he did, the plaintiff fails to state a claim of retaliation
because the plaintiff: 1) fails to allege any retaliatory action post-dating the filing of his
EEO complaint; 2) fails to allege any facts by which this Court could conclude that any
of the plaintiff’s colleagues, especially CBP’s decision makers, were even aware of his
verbal request for EEO counseling and retaliated against him in response; 3) fails to
allege any facts that would constitute adverse employment actions; and 4) fails to allege
any facts that establish a causal connection between his verbal request for EEO
counseling and CBP’s investigation of the events of November 12, 2008, particularly
when the plaintiff concedes that the CBP’s investigation commenced prior to the
plaintiff’s request for EEO counseling. Sixth, the plaintiff does not state a claim for
disparate treatment because the plaintiff fails to allege that similarly situated individuals
outside his protected group engaged in similar conduct, but received more favorable
treatment under the same circumstances. The defendants contends that all of these
grounds warrant dismissal of the plaintiff’s complaint in its entirety.
DISCUSSION
The Standard of Review for a Motion to Dismiss
In deciding a motion to dismiss, the Court’s analysis is generally limited to the
four corners of the plaintiff's complaint and the attached exhibits. Grossman v.
Nationsbank, 225 F.3d 1228, 1231 (11th Cir. 2000); Caravello v. American Airlines, Inc.,
315 F. Supp. 2d 1346, 1348 (S.D. Fla. 2004). The Court must also accept the plaintiff's
well pled facts as true and construe the complaint in the light most favorable to the

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plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Caravello, 315
F. Supp. 2d at 1348 (citing United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236
(11th Cir. 1999)(en banc)). To survive a motion to dismiss, the complaint must contain
factual allegations that are “enough to raise a right to relief above the speculative level.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In a pro se action such as
this, the Court construes the complaint more liberally than it would pleadings drafted by
an attorney. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). “When there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal,

U.S.

, 129 S.

Ct. 1937, 1950 (2009). The issue to be decided by the Court is not whether the plaintiff
will ultimately prevail, but “whether the claimant is entitled to offer evidence to support
the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds
by Davis v. Scheuer, 468 U.S. 183 (1984); Taylor v. Ledbetter, 818 F.2d 791, 794 n.4
(11th Cir. 1987), cert. denied, 489 U.S. 1065 (1989).
Analysis
A.

Sovereign Immunity Bars the Claims against the EEOC.
The defendants argue that the EEOC should be dismissed as a defendant in this

action because the EEOC was not the plaintiff’s employer and the EEOC did not waive
sovereign immunity. Motion to Dismiss at 4 (DE# 14-1, 4/27/11). “The United States,
as sovereign, is immune from suit save as it consents to be sued.” United States v.
Sherwood, 312 U.S. 584, 586 (1941). The “Supreme Court has ruled sovereign
immunity shields federal agencies from suit unless that agency waived sovereign
immunity.” Reeves v. DSI Sec. Servs., 331 F. App’x 659, 661 (11th Cir. 2009) (citing
Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999)). In a suit against the

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United States, a waiver of sovereign immunity is a “prerequisite for jurisdiction” and
“must be unequivocally expressed in statutory text.” United States v. Mitchell, 463 U.S.
206, 212 (1983) and Lane v. Pena, 518 U.S. 187, 192 (1996), respectively. Because
the sovereign immunity bars claims against the EEOC, all claims against the EEOC are
DISMISSED.
B.

Race and Age Discrimination (Counts I and III, Respectively)
Title VII prohibits an employer from discharging or otherwise discriminating

against a person based on the person’s race, color, religion, sex, or national origin, or
retaliating against an employee for reporting discrimination. See 42 U.S.C. § 2000e, et
seq. The Age Discrimination in Employment Act (“ADEA”) prohibits age discrimination
in employment.
To “establish a prima facie case of disparate treatment, Plaintiff must
demonstrate that (1) he is a member of a protected class; (2) he was subjected to an
adverse employment action; and (3) his employer treated similarly situated employees
outside of [his] protected class more favorably that [he] was treated.” Smalley v.
Holder, No. 09-21253-CV, 2011 WL 649355 * (S.D. Fla. Feb. 22, 2011) (citing BurkeFowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006)). The defendant argues
that the plaintiff’s complaint fails to allege that similarly situated individuals outside his
protected group engaged in similar conduct, but received more favorable treatment
under the same circumstances.
The plaintiff’s reliance on the Supreme Court’s decision in Staub v. Proctor
Hosp., 131 S. Ct. 1186 (2011), does not remedy his pleading deficiency. In Staub, the
Supreme Court reversed a judgment as a matter of law on a claim based on the
Uniformed Services Employment and Reemployment Rights Act. In Staub, the

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Supreme Court explained the liability of an employer for discriminatory animus by
supervisors as follows: “[t]he employer is at fault because one of its agents committed
an action based on discriminatory animus that was intended to cause, and did in fact
cause, an adverse employment decision.” Id. at 1193. Likewise, the plaintiff’s reliance
on EEOC v. BCI Coca-Cola Bottling Co. of La., 450 F.3d 476 (10th Cir. 2006), and
Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405 (6th Cir. 2008), is
misplaced. In these two cases, the appellate courts reversed summary judgments
based on findings that fact issues existed on the plaintiffs’ discrimination claims.
None of the plaintiff’s cases address discrimination claims in the context of a
motion to dismiss. This Court agrees with the defendant that this pleading deficiency
warrants dismissal of the plaintiff’s discrimination claims. See Hopkins v. Saint Lucie
County Sch. Bd., 399 F. App’x 563, 566 (11th Cir. 2010) (affirming dismissal of pro se
complaint alleging disparate treatment when plaintiff “provide[d] no facts that would
allow a court to infer that the school district treated those outside the class of AfricanAmerican males more favorably”); Crawford v. City of Tampa, 397 F. App’x 621, 623
(11th Cir. 2010) (affirming dismissal of pro se complaint alleging disparate treatment
when plaintiff “failed to identify appropriate comparators whose treatment would
indicate race-based disparity”) (citations omitted). The defendant’s motion to dismiss
Count I and Count III is GRANTED and the race and age discrimination claims in
Counts I and III, respectively, are DISMISSED without prejudice.
C.

Retaliation Claim (Title VII) (Count II)
1.

Exhaustion of Remedies

The plaintiff has failed to exhaust his remedies to assert a retaliation claim
because he failed to include it in his EEO charge and complaint. “[A] federal employee

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must exhaust h[is] administrative remedies” before filing a Title VII action. AndrewsWillmann v. Paulson, 287 F. App’x 741, 745 (11th Cir. 2008) (citing Crawford v. Babbitt,
186 F.3d 1322, 1326 (11th Cir. 1999); 42 U.S.C. § 2000e-16(c)). “The purpose of
[requiring the] exhaustion of remedies [of administrative remedies] is to give [an]
agency the information it needs to investigate and resolve the dispute between the
employee and the employer.” Wade v. Sec’y of Army, 796 F.2d 1369, 1377 (11th Cir.
1986).
The plaintiff filed his formal EEO Complaint in February 2009. In March 2009,
the defendant provided a claim construction letter that identified the claims accepted for
investigation base on the plaintiff’s complaint. The claim construction letter notified the
plaintiff that “[i]f [he] disagree[d] with the issues,” he was to notify CBP “in writing within
15 days of the date of receipt of th[e] letter” and “if no response was received,” CBP
would “assume that [the plaintiff] agree[d] with the issues and w[ould] proceed with the
investigation of the complaint.” The plaintiff did not respond to the claim construction
letter, offered no amendments to his formal EEO complaint, and proceeded with an
administrative litigation of his EEO claims. The plaintiff never raised the retaliation
claim at the administrative level. Because the plaintiff did not exhaust his administrative
remedies, the Court grants the defendant’s motion to dismiss the plaintiff’s retaliation
claim (Count II). See Paulson, 287 F. App’x at 744, 746 (affirming judgment for the
government on plaintiff’s retaliation claim due to failure to exhaust administrative
remedies); Ramon v. AT&T Broadband, 195 F. App’x 860, 866 (11th Cir. 2006)
(affirming district court’s finding that plaintiff did not exhaust her administrative remedies
on her claim of retaliation).
As in Paulson, the plaintiff received a claim construction letter that identified the

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type of discrimination he was claiming and the specific actions that were being
investigated. Similarly, the plaintiff in Paulson was given an opportunity to object to the
characterization of the claims identified in the claim construction letter, but chose not to.
As in Paulson, the plaintiff’s retaliation claim at bar is subject to dismissal for failure to
exhaust his administrative remedies. The defendant’s motion to dismiss the plaintiff’s
retaliation claim (Count II) is GRANTED and the plaintiff’s retaliation claim is
DISMISSED with prejudice because the time period to exhaust administrative remedies
has expired.
D.

False Claims Act Claim (Count IV) and Whistleblower Claim (Count IV)
False Claims Act
The False Claims Act (“FCA”), 31 U.S.C. § 3729, et seq., authorizes the United

States, or private citizens on behalf of the United States, to recover treble damages
from those who knowingly make false claims for money or property upon the United
States, or who submit false information in support of such claims. “The purpose of the
[FCA] is ... to discourage fraud against the government.” See Neal v. Honeywell, 826 F.
Supp. 266, 269 (N.D. Ill. 1993), aff’d., 33 F.3d 860 (7th Cir. 1994). The defendant seeks
dismissal of the plaintiff’s False Claims Act claim (Count IV). The plaintiff is not bringing
an action on behalf of the United States and makes no allegations of fraud in his
complaint. See Ercole v. LaHood, No. 07-CV-2049 (JFB) (AKT), 2011 WL 1205137, at
*13 (E.D.N.Y. Mar. 29, 2011) (dismissing pro se federal employee’s FCA claim because
plaintiff was “not bringing an action on behalf of the United States and ma[de] no
allegations of fraud in his complaint”); Mack v. United States Postal Servs., No. 92-CV0068 (FB), 1998 WL 546624, at *7 (E.D.N.Y. Aug. 26, 1998) (rejecting and dismissing
pro se federal employee’s FCA claim as not having been brought “on behalf of the

9

government”). The Civil Service Reform Act (“CSRA”), 5 U.S.C. §§ 1213 and 2302,
“provide[s] the exclusive remedy for federal employees who suffer retaliation as a result
of whistle blowing. ... [F]ederal employees can not assert claims under [the FCA].” Daly
v. Dep’t of Energy, 741 F. Supp. 202 (D. Colo. 1990) (citing Premachandra v. United
States, 739 F.2d 392 (8th Cir. 1984) (affirming dismissal of plaintiff’s wrongful
termination suit under the Federal Tort Claims Act); see Coe v. N.L.R.B., 40 F. Supp.
2d 1049, 1053 (E.D. Wis. 1999) (Title VII of the Civil Rights Act of 1964, as amended,
and the CSRA provide the exclusive remedies for federal employees with employment
discrimination claims and nondiscriminatory employment claims, respectively). The
defendant’s motion to dismiss the FCA claim in Count IV is GRANTED and the False
Claims Act claim in Count IV is DISMISSED with prejudice in this Court.
Whistleblower Claim (Count IV)
The Whistleblower Protection Act of 1989 (“WPA”) “provides protection to federal
employees against agency reprisal for whistleblowing activities, such as disclosing
illegal conduct, gross mismanagement, gross waste of funds, or acts presenting
substantial dangers to health and safety.” Hendrix v. Snow, 170 Fed. App’x 68, 78 (11th
Cir. 2006) (citing 5 U.S.C. §2302(b)(8)). The “Civil Service Reform Act (“CSRA”)
provides the exclusive remedy for claims brought pursuant to the WPA.” Fleeger v.
Principi, 221 F. App’x 111, 115 (3d Cir. 2007) (citing Richards v. Kiernan, 461 F.3d 880,
885-86 (7th Cir. 2006); accord Hendrix, 170 Fed. App’x at 78-79.
The CSRA requires the employee to file a claim alleging a WPA violation with the
Office of Special Counsel (“OSC”), which investigates the claim. If the OSC finds a
violation, it may petition the United States Merit Systems Protection Board (“MSPB”) on
behalf of the employee. Hendrix, 170 Fed. App’x at 79 (citing 5 U.S.C. §§ 7703). The

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MSPB’s decision is appealable to the United States Court of Appeals for the Federal
Circuit. Id.; accord Best v. Adjutant Gen., State of Florida, Dept. of Military Affairs, 400
F.3d 889, 891-92 (11th Cir. 2005) (conveying appellate jurisdiction to the “Federal
Circuit”).
“The only way that an agency decision under the WPA may be reviewed by a
federal court, other than the Federal Circuit, is if the plaintiff has filed a ‘mixed case’
complaint - that is, a complaint that raises, in addition to claims under the CSRA like
whistleblowing, issues under various anti-discrimination statutes.” Fleeger, 221 F.
App’x at 115 (citing 5 U.S.C. § 7703(b)(2)). “Under no circumstances does the WPA
grant the District Court jurisdiction to entertain a whistleblower cause of action brought
directly before it in the first instance.” Id. at 116 (quoting Stella v. Mineta, 284, F.3d
135, 142 (D.C. Cir. 2002)).
1.

Exhaustion of Remedies

“When motions to dismiss are based on issues not enumerated under Rule
12(b), such as here, then Federal Rule of Civil Procedure 43(c) governs and ‘permits
courts to hear evidence outside the record on affidavits submitted by parties.’” Gordon
v. Ghaly, Case No. 10-cv-952-Orl-31DAB, 2011 WL 915577 * 3 (M.D. Fla. March 16,
2011)(quoting Brown v. Darr, 2010 WL 1416522, at * 3 (M.D. Ga. 2010) (quoting Bryant
v. Rich, 530 F.3d 1368, 1377 n. 16 (11th Cir. 2008)). “[T]he judge may resolve factual
questions concerning a plaintiff’s alleged failure to exhaust nonjudicial remedies, ‘so
long as the factual disputes do not decide the merits and the parties have sufficient
opportunity to develop a record.’” Id. (quoting Bryant, 530 F.3d at 1376) (footnote
omitted).
As in Fleeger and Hendrix, the plaintiff in the present action has failed to exhaust

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his administrative remedies because he did not raise a whistleblower claim in his
administrative proceedings. In Fleeger, the court dismissed the WPA claim because
the plaintiff did not pursue a WPA claim and did not exhaust her remedies. Id. at 115.
In Hendrix, the Eleventh Circuit affirmed the district court’s summary judgment in favor
of the defendant on the plaintiff’s WPA claims for failing to exhaust her administrative
remedies. Because the plaintiff did not raise his WPA claim before filing his federal
action, the undersigned concludes that he failed to exhaust his administrative remedies
and dismisses his WPA claim. Even if he did, which he did not, the plaintiff failed to
allege any protected disclosure. See Yost v. Dep’t of Health and Human Servs, 4 F.
App’x 900, 902 (Fed. Cir. 2001) (citing 5 U.S.C. §§ 1221(e)(1), 2302(b)(8)). “A
protected disclosure is a disclosure which an employee reasonably believes evidences
‘(i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and specific danger to public
health or safety.’” Id. at 902 (citing 5 U.S.C. § 2302(b)(8)).
2.

No Protected Disclosure

In the present case, the plaintiff failed to allege any protected disclosure or
adverse employment action in response to that disclosure sufficient to state a WPA
claim. See Floyd v. United States Dep’t of Homeland Sec., No. RDB-09-0735, 2009
WL 3614830, at *3 (D. Md. Oct. 27, 2009) (dismissing WPA claim for lack of
exhaustion).
The motion to dismiss the plaintiff’s Whistleblower claim is GRANTED and the
Whistleblower claim in Count IV is DISMISSED with prejudice in this Court.
E.

Conspiracy to Obstruct Justice Act (Count V)
The Conspiracy to Obstruct Justice Act has three specific sections: 1) protection

12

against conspiracies to prevent “officers from performing duties;” 2) protection against
conspiracies to intimidate a party, witness or juror from attending or testifying in federal
court; and 3) protection against a conspiracy to deprive “persons or rights or privileges.”
42 U.S.C.§ 1985 (1)-(3). Plaintiff attempts to state a claim under section 3. In Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971), the Supreme Court held that section 1985(3)
addresses only those conspiracies which are motivated by “racial, or perhaps otherwise
class-based, invidiously discriminatory animus.” Section 1985(3) does not create a
general federal tort law. Id. The overt acts in furtherance of the conspiracy must be
pled with specificity. Larson v. School Board of Pinellas County, Florida, 820 F. Supp.
596, 600 (M.D. Fla. 1993).
To “state a claim under [42 U.S.C.] § 1985(3), a plaintiff must allege: 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 Sys., 596 F.3d 1304, 1312 (11th Cir. 2010) (citing Johnson v.
City of Fort Lauderdale, 126 F.3d 1372, 1379 (11th Cir. 1997)). “The core of a
conspiracy claim is an agreement between the parties; thus, where the plaintiff fails to
allege an agreement, the pleading is deficient and subject to dismissal.” Bailey v.
Board of County Comm’rs of Alachua County, Fla., 956 f.2d 1112, 1122 (11th Cir. 1992).
To show the second element, the plaintiff must show “some racial, or perhaps
otherwise class-based, invidiously discriminatory animus behind the conspirators’
action.” Lucero v. Operation Rescue of Birmingham, 954 F.2d 624, 628 (11th Cir. 1992)

13

(citation omitted); see Trawinski v. United Techs., 313 F.3d 1295, 1299 (11th Cir. 2002)
(requiring allegations supporting an “invidious discriminatory intent”).
The conspiracy claim (Count V of the plaintiff’s Complaint) consists of an
incorporation of all prior paragraphs of the Complaint as well as a single additional
paragraph that provides a general and conclusory allegation of conspiracy. See, e.g.,
Complaint ¶¶ 22, 45 that are incorporated into Count V. No injury is alleged in Count V.
The “shotgun pleading” is insufficient. “[W]here a plaintiff merely alleges ‘conclusory,
vague or general allegations of conspiracy,’ dismissal of the conspiracy claim may be
proper.” Mickens v. Tenth Judicial Circuit, 181 F. App’x 865, 876 (11th Cir. 2006) (citing
Kearson v. Southern Bell Telephone and Telephone Co., 763 F.2d 405, 407 (11th Cir.
1985)).
Although the plaintiff’s pro se Complaint is entitled to a liberal construction by the
Court, the allegations fail to allege any facts to support a conspiracy by two or more
people with an invidiously discriminatory animus towards him or individuals in his racial
and/or age classification. See, e.g., Mickens v. Tenth Judicial Circuit, 181 F. App’x 865,
876 (11th Cir. 2006) (affirming the dismissal of a sub-section 1985(3) conspiracy claim
because the plaintiffs “failed to allege with specificity an agreement between the
defendants to deprive the [plaintiffs] of their rights”); Artubel v. Colonial Bank Group,
Inc., No. 8:08-cv-179-T-23MAP, 2008 3411785, at *13 (M.D. Fla. Aug. 8, 2008)
(dismissing conspiracy claim when “complaint fail[ed] to allege facts sufficient to support
an inference of race-based animus”). The defendant’s motion to dismiss the plaintiff’s
Conspiracy to Obstruct Justice Act claim (Count V) is GRANTED and Count V is
DISMISSED without prejudice. The plaintiff may file an amended complaint on or
before October 25, 2011. The failure to file an amended complaint on or before

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October 25, 2011 will result in the dismissal of this action in its entirety.
DONE AND ORDERED in Miami, Florida, this 28th day of September, 2011.

________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE

Copies provided to:
All counsel of record
Kenneth D. Humphrey, pro se

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