Sylvester v. 50 State Security US Associate Inc. et al
Filing
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ORDER GRANTING County's 18 Motion to Dismiss; GRANTING in part and DENYING in part 50 State's 24 Motion to Dismiss; and GRANTING Plaintiff's 23 , 26 , 27 Motions for Leave to File Amended Complaint. Plainti ff may file an amended complaint on or before October 1, 2018. The Clerk shall CLOSE this case. I will reopen the case if Plaintiff files his amended complaint within the deadline. Signed by Judge Marcia G. Cooke on 8/30/2018. See attached document for full details. (smz)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-21896-Civ-COOKE/GOODMAN
MELANIUS SYLVESTER,
Plaintiff,
vs.
50 STATE SECURITY US ASSOCIATE, INC.
and MIAMI DADE COUNTY,
Defendants.
_______________________________________/
OMNIBUS ORDER ON MOTIONS
THIS MATTER is before me on Defendant Miami Dade County’s [“County”] Motion
to Dismiss (ECF No. 18), Plaintiff’s Motion for Leave to File Amended Complaint (“Plaintiff’s
First Motion”) (ECF No. 23), Defendant 50 State Security Service, Inc.’s [“50 State”]1 Motion
to Dismiss Plaintiff’s Complaint or Alternatively for Summary Judgment (ECF No. 24), and
Plaintiff’s Motion for Leave to File Amended Complaint (“Plaintiff’s Second Motion”) (ECF
Nos. 26, 27).2 I have reviewed the Motions, the responses and reply thereto, the record, and the
relevant legal authorities. For the reasons discussed below, the County’s Motion is granted,
Plaintiff’s First Motion is granted, 50 State’s Motion is granted in part and denied in part, and
Plaintiff’s Second Motion is granted in part and denied in part.
I.
BACKGROUND
Plaintiff brings this wrongful termination action under 42 U.S.C. § 1983, alleging that
Defendants wrongfully terminated his employment with 50 State. Compl., p. 5, ECF No. 1.
Plaintiff worked for 50 State as a Property Protection Officer (“PPO”) at the Earlington Heights
Metrorail Station. Id. at 6. Plaintiff alleges that 50 State had a contract to provide such services
with the County’s Transit Safety and Security Department. Id. at 5. Plaintiff claims that he
reported to his supervisors that another supervisor was fraudulently reporting his overtime
1
50 State asserts it sold its security business and is now operating as TL37. For ease of
reference and consistency with Plaintiff’s Complaint, I will refer to Defendant as 50 State.
2
Docket Entries 26 and 27 appear to be seeking the same relief; the only difference between the
two motions is that Docket Entry 27 includes the substance of Plaintiff’s proposed amended
complaint.
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hours. Id. at 6. As a result of that information being shared with the County, Plaintiff alleges
that Paul (Pablo) Castillo, the manager of the Safety and Security Department, intentionally
excluded him from eligibility to work in the renewed security contract for 2015. Id. Plaintiff
then contacted an individual within the County’s Executive Department to determine why he
was excluded and was shortly thereafter reinstated to the contract. Id. Plaintiff alleges that
County employees Eric Muntum, Lazaro Dominguez, and Anillo Eddy retaliated against him
by harassing him with unsubstantiated information and citations after he was reinstated to the
contract. Id. at 8–9.
On September 9, 2015, while working as a PPO at the Earlington Heights Station,
Plaintiff was involved in an incident. Id. at 6. According to Plaintiff, a customer assaulted him
with an 8-lb phone and a weapon; in response, Plaintiff drew and discharged his weapon. Id.
Plaintiff states he was wrongfully arrested and charged after the incident. Id. A human resources
manager for 50 State interviewed Plaintiff after the incident and advised him that he would be
sent home and, depending on the outcome of the case, would be reinstated to his job and
reimbursed for his legal fees and the time he missed from work. Id.
Prior to his criminal case being resolved, Plaintiff received a letter from his health
insurance carrier notifying him that his coverage was canceled because 50 State had terminated
his employment. Id. at 7. Plaintiff alleges he never that received a termination letter from 50
State and therefore was unable to apply for unemployment. Id.
After Plaintiff’s criminal case was dismissed on July 25, 2016, he contacted Fred Taylor,
50 State’s project manager of the Miami Dade Metrorail and Mover System Security Contract.
Id. Mr. Taylor told Plaintiff that he would have human resources contact him regarding
reinstatement. Id. However, no one ever contacted Plaintiff, despite several calls and emails. Id.
Plaintiff states that he believes the Chief of the Safety and Security Department at the County
was “aiding and assisting the inspector to retaliate against him.” Id. at 8. As of the date of
Plaintiff’s Complaint, 50 State had not reinstated him, paid his vacation, nor issued his uniform
refund. Id.
II.
THE COUNTY’S MOTION TO DISMISS AND PLAINTIFF’S FIRST
MOTION
The County moves to dismiss Plaintiff’s Complaint on two bases. First, the County
moves to dismiss based on the fact that Plaintiff served Defendant three calendar days, or one
business day, after the date listed in my Order Denying Plaintiff’s Motion for Entry of Default
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Judgment (“Order”) (ECF No. 14). If a plaintiff fails to serve a defendant within the timeframe
established by Rule 4(m), a court may extend the time period to serve defendants if the plaintiff
shows good cause for failing to serve defendants timely. Lepone-Dempsey v. Carroll Cty. Comm’rs,
476 F.3d 1277, 1281 (11th Cir. 2007). “Even in the absence of good cause, a district court has
the discretion to extend the time for service of process.” Id. (citing Horenkamp v. Van Winkle &
Co., 402 F.3d 1129, 1132 (11th Cir. 2005); Henderson v. United States, 517 U.S. 654, 663 (1996)).
Plaintiff initially served the County timely, but improperly. See Order. However, I granted
Plaintiff an extension of time to serve Defendants, after which Plaintiff appears ultimately to
have served the County properly, albeit one business day outside the extended deadline. See
Order. The County has not alleged any prejudice or harm from having been served one business
day after the deadline; I therefore find that the County has been properly and timely served and
will not dismiss the Complaint on that basis.
The County’s second argument for dismissal is that Plaintiff has not properly pleaded a
claim against it. “Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998). However, the leniency shown to pro se litigants “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 Invs. v. Cty. of Escambia, 132 F.3d 1359, 1369 (11th
Cir. 1998) (citation omitted), overruled on other grounds, as recognized in Randall v. Scott, 610 F.3d
701, 709 (11th Cir. 2010). Liberally construing Plaintiff’s Complaint, Plaintiff alleges that the
County violated 42 U.S.C. § 1983 when some of its employees allegedly retaliated against him
and harassed him after he was reinstated to the Contract after reporting overtime violations to
his supervisor. “42 U.S.C. § 1983 creates a private right of action for deprivations of federal
rights by persons acting under color of state law.” Hallett v. Ohio, 711 F. App’x 949, 951 (11th
Cir. 2017) (citing 42 U.S.C. § 1983). However, “[a] county does not incur § 1983 liability for
injuries caused solely by its employees.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.
2004). “A plaintiff seeking to hold a municipality liable under § 1983 must identify a municipal
‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Id. at 1290 (quoting Wayne v. Jarvis, 197
F.3d 1098, 1105 (11th Cir. 2004)). “A policy is a decision that is officially adopted by the
municipality, or created by an official of such rank that he or she could be said to be acting on
behalf of the municipality . . . . A custom is a practice that is so settled and permanent that it
takes on the force of law.” Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005). The County
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contends that Plaintiff has not alleged any facts supporting an inference that the County had a
policy or custom that led to a violation of Plaintiff’s rights. I agree. Plaintiff has alleged only
that three County employees retaliated against him and harassed him “with unsubstantiated
information and citations” after he was reinstated to the service contract, and that he “believes”
one of these employees “aided and assisted the inspector” in retaliating against him. This does
not amount to a policy or custom sufficient to hold the County liable under § 1983.
In response to the County’s Motion, Plaintiff requests leave to file an amended
complaint. See First Motion, ECF No. 23. “When moving the district court for leave to amend
[his] complaint, the plaintiff must set forth the substance of the proposed amendment or attach a
copy of the proposed amendment to [his] motion.” Newton v. Duke Energy Fla., LLC, 895 F.3d
1270, 1277 (11th Cir. 2018). Plaintiff did not attach a copy of an amended complaint, nor has
he “set forth sufficiently the substance of [his] proposed amendment.” Id. In fact, the Complaint
attached to his First Motion is simply a copy of his original Complaint. However, had Plaintiff
not filed a motion for leave to amend, I would likely have granted Plaintiff leave to file an
amended complaint given his pro se status. Plaintiff should not be in a worse position for having
filed a motion for leave to amend than had he not filed such a motion. Accordingly, the
County’s Motion is granted and Plaintiff’s First Motion for Leave to Amend is granted as
outlined below. See infra V. Conclusion.
III.
50 STATE’S MOTION TO DISMISS AND PLAINTIFF’S SECOND
MOTION FOR LEAVE TO AMEND
A.
Lack of Subject Matter Jurisdiction
50 State moves to dismiss Plaintiff’s Complaint for lack of subject matter jurisdiction
because Plaintiff has not alleged that 50 State acted under color of state law as necessary to state
a viable § 1983 claim. “[I]t is well settled that a federal court is obligated to inquire into subject
matter jurisdiction . . . whenever it may be lacking.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d
405, 410 (11th Cir. 1999). “[A] federal court may dismiss a federal question claim for lack of
subject matter jurisdiction only if: (1) the alleged claim under the Constitution or federal statutes
clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction; or (2)
such a claim is wholly insubstantial and frivolous.” King v. Epstein, 167 F. App’x 121, 122 (11th
Cir. 2006) (quoting Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1352 (11th Cir.
1998)). “A claim is ‘wholly insubstantial and frivolous’ where it ‘has no plausible foundation, or
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if the court concludes that a prior Supreme Court decision clearly forecloses the claim.’” Id.
(quoting Sanders, 138 F.3d at 1352).
“42 U.S.C. § 1983 creates a private right of action for deprivations of federal rights by
persons acting under color of state law.” Hallett v. Ohio, 711 F. App’x 949, 951 (11th Cir. 2017)
(citing 42 U.S.C. § 1983). “To prevail on a § 1983 claim, ‘a plaintiff must demonstrate both (1)
that the defendant deprived h[im] of a right secured under the Constitution or federal law and
(2) that such a deprivation occurred under color of state law.’” Id. (quoting Arrington v. Cobb
Cty., 139 F.3d 865, 872 (11th Cir. 1998)). “A person acts under color of state law when he acts
with authority possessed by virtue of his employment with the state.” Griffin v. City of Opa-Locka,
261 F.3d 1295, 1303 (11th Cir. 2001). “State action is a jurisdictional prerequisite [in a viable §
1983 action.]” King, 167 F. App’x at 122 (citing Nail v. Cmty. Action Agency of Calhoun Cty., 805
F.2d 1500, 1501 (11th Cir. 1986) (per curiam); Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341,
1347 (11th Cir. 2001)).
Plaintiff alleges that both Defendants are either agents of Miami Dade County or direct
employees of the County. Compl., p. 4. However, “[o]nly in rare circumstances can a private
party be viewed as a ‘[S]tate actor’ for section 1983 purposes.” Rayburn, 241 F.3d at 1347
(quoting Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)). The particular conduct at
issue here is Plaintiff’s termination and/or lack of reinstatement after the incident at Earlington
Heights Metrorail Station. “Thus, the issue is whether [50 State’s] personnel decisions may be
fairly attributable to the [County]” so as to be subject to § 1983 liability. Allocco v. City of Coral
Gables, 221 F. Supp. 2d 1317, 1374 (S.D. Fla. 2002), aff’d, 88 F. App’x 380 (11th Cir. 2003).
The Eleventh Circuit employs “three distinct tests in determining whether the actions of a
private entity are properly attributable to the state[:] . . . (1) the public function test; (2) the state
compulsion test; and (3) the nexus/joint action test.” Focus on the Family v. Pinellas Suncoast
Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003) (quoting Willis v. Univ. Health Servs., Inc.,
993 F.2d 837, 840 (11th Cir. 1993)). Plaintiff has not alleged facts which support any of these
tests.
“The public function test limits state action to instances where private actors are
performing functions ‘traditionally the exclusive prerogative of the state.’” Willis, 993 F.2d at
840 (quoting Nat’l Broad. Co., Inc. v. Commc’ns Workers of Am., AFL-CIO, 860 F.2d 1022, 1026–
27
(11th
Cir.
1988)).
The
alleged
unconstitutional
conduct
in
this
case
was
Plaintiff’s termination; however, the act of terminating Plaintiff’s employment was not a result
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of 50 State functioning as security or police, but from its conduct as an employer. Allocco, 221
F. Supp. 2d at 1374. The public function test therefore does not apply.
“The state compulsion test limits state action to instances where the government ‘has
coerced or at least significantly encouraged the action alleged to violate the Constitution.’”
Focus, 344 F.3d at 1277 (quoting Willis, 993 F.2d at 840). Plaintiff’s only factual allegations
other than his conclusory “belief” that a County employee aided in 50 State’s retaliation
against him is that a manager from the County’s Safety and Security Department excluded him
from the working on the renewed security contract. Compl., p. 6. But this alleged exclusion
appears to have taken place sometime in 2014, at least nine months prior to the alleged
incident. Id. Plaintiff alleges no other facts regarding the County’s involvement in Plaintiff’s
termination or the denial of his reinstatement. Even construing Plaintiff’s Complaint liberally,
the facts as alleged do not lead to a reasonable inference that the County coerced or
significantly encouraged 50 State’s decision to fire him or to deny his reinstatement. Similarly
to the public function test, the state compulsion test does not apply.
Lastly, “[t]he nexus/joint action test applies where the state has so far insinuated itself
into a position of interdependence with the [private party] that it was a joint participant in the
enterprise.” Focus, 344 F.3d at 1277 (quoting Willis, 993 F.2d at 840). Courts evaluate several
factors in determining whether a public and private entity are so necessarily intertwined as to
render the private entity subject to § 1983 liability, including whether:
(1) the public and private entities are separate and distinct under the law; (2)
the private entity had discretion to hire and fire employees; (3) the private entity
was responsible for maintenance and repair of its own facilities; (4) the private
entity had the right to make its own rules and regulations; (5) the private entity
agreed to indemnify the public entity from liability; and (6) the private entity
leased property from the public entity.
Allocco, 221 F. Supp. 2d at 1376 (citing Rendell-Baker v. Kohn, 457 U.S. 830, 842–43 (1982)
(identifying factor six); Patrick v. Floyd, 201 F.3d 1313, 1315 (11th Cir. 2000) (identifying
factors one through five)). Plaintiff has not alleged any facts denying any of the aforementioned
criteria.3 Therefore, 50 State is not a state actor pursuant to the nexus/joint action test.
3
50 State has submitted an affidavit from one of its shareholders outlining how 50 State does
not meet many of the factors in the nexus/joint action test. See Ex. A, ¶¶ 3–6, ECF No. 24-1.
However, because Plaintiff has not alleged any facts that would support an inference that 50
State met the nexus/joint action test, I do not need to rely on 50 State’s affidavit.
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Accordingly, the Complaint contains no facts from which I can draw an inference that
50 State is a state actor for § 1983 purposes;4 I am therefore without jurisdiction to entertain
Plaintiff’s § 1983 claim. Hallett v. Ohio, 711 F. App’x 949, 951 (11th Cir. 2017) (“The district
court did not err in dismissing Hallett’s complaint for lack of subject matter jurisdiction” where
the plaintiff “failed to allege that the defendants acted under color of state law, and failed to
substantiate his claim with anything other than conclusory allegations.”); Lucy v. Grow, 698 F.
App’x 575, 576 (11th Cir. 2017), cert. denied, 138 S. Ct. 2018 (2018) (“§ 1983 provides no relief
here because there is no allegation that [the defendant] acted under color of state law. . . . We
therefore agree with the district court that it lacked subject-matter jurisdiction.”); King v.
Epstein, 167 F. App’x 121, 122 (11th Cir. 2006) (“State action is a jurisdictional prerequisite,
and we must therefore dismiss the [plaintiffs’] section 1983 claim in its absence.”)
(citing Nail, 805 F.2d at 1501; Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir.
2001)). Once again, Plaintiff has moved for leave to amend and has filed a response to 50
State’s Motion; however, his arguments mainly address 50 State’s claim that it is an improper
defendant based on the sale of its security business. See discussion infra, III.C. 50 State May Be a
Proper Defendant. Nevertheless, I will grant Plaintiff leave to amend his § 1983 claim against
50 State so long as he can allege facts, not conclusory statements, that 50 State was a state
actor according to one of the legal tests explained above.
B. Failure to State Title VII Claim
50 State also moves to dismiss Plaintiff’s Complaint on the grounds that he has failed to
properly allege a Title VII claim. Plaintiff’s Complaint mentions Title VII, but it is not clear
whether he is alleging a separate Title VII claim over and above his § 1983 claim, or whether
he believes his Title VII claim is intertwined with, and the basis for, his § 1983 claim.
Notwithstanding, Title VII “prohibits an employer from discriminating against an
employee ‘because of such individual’s race, color, religion, sex, and national origin.’” Univ. of
Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 338 (2013) (quoting 42 U.S.C. § 2000e–3(a)). While
Title VII also prohibits retaliation “because [an employee] has opposed . . . an unlawful
employment practice . . . or . . . made a [Title VII] charge,” id. (quoting 42. U.S.C. § 2000(e)–
4
Because I find that Plaintiff has not sufficiently alleged state action, I do not address 50
State’s argument that Plaintiff failed to state a violation of a federal statutory or constitutional
right, although it seems clear that Plaintiff alleged a violation of his First Amendment right to
free speech.
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3(a)), the unlawful employment practices must still relate to discrimination based on race,
color, religion, sex, and national origin. 42. U.S.C. § 2000(e)–3(a) (prohibiting discrimination
“because [an employee] has opposed any practice made an unlawful employment practice by
this subchapter”) (emphasis added). In his Complaint, Plaintiff has not alleged that he is a
member of a protected group, nor has he alleged that Defendants discriminated against him
because of his membership in a protected group. 50 State moves to dismiss or for summary
judgment on this basis. However, in Plaintiff’s Response to 50 State’s Motion, he attaches a
Dismissal and Notice of Rights letter from the EEOC, as well as a Charge of Discrimination.
See ECF No. 29, p. 4–8. While this documentation was not attached to his Second Motion to
Amend, it indicates that he may have intended to file an independent Title VII action. I will
therefore grant in part 50 State’s Motion and dismiss Plaintiff’s Complaint for failure to state a
claim; however, I shall grant Plaintiff leave to amend to state a proper Title VII claim.
C. 50 State May Be a Proper Defendant
50 State also argues that it is an improper Defendant because it sold its assets and
liabilities to U.S. Security on July 8, 2016. As a result, 50 State claims that U.S. Security is the
proper defendant in this action because Plaintiff’s termination claim accrued on July 26,
2016—after his criminal case closed and he contacted 50 State to be reinstated. However, a
brief review of Plaintiff’s EEOC documents reveals that he also complained of various
personnel actions that occurred prior to July 8, 2016. Accordingly, 50 State may be an
appropriate Defendant in this action, as well as U.S. Security. 50 State’s Motion is therefore
denied insofar as 50 State is not entitled to dismissal or summary judgment on this issue.
IV.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED and ADJUDGED as follows:
1. The County’s Motion to Dismiss (ECF No. 18) is GRANTED.
2. 50 State’s Motion to Dismiss (ECF No. 24) is GRANTED in part and DENIED in
part.
3. Plaintiff’s Complaint is DISMISSED for lack of subject matter jurisdiction and
failure to state a claim upon which relief may be granted.
4. Plaintiff’s first Motion for Leave to File an Amended Complaint (ECF No. 23) and
Second Motion for Leave to Amend (ECF No. 26, 27) are GRANTED. Plaintiff
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may file an amended complaint, on or before October 1, 2018, pleading facts which
state a claim under Title VII and/or § 1983.
5. The Clerk shall CLOSE this case. I will reopen this case if Plaintiff files his amended
complaint within the deadline.
DONE and ORDERED in Chambers, Miami, Florida, this day of 30th day of August
2018.
Copies furnished to:
Melanius Sylvester, pro se
Jonathan Goodman, U.S. Magistrate Judge
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