Salazar Cano v. The Equal Employment Opportunity Commision (EEOC) et al

Filing 27

ORDER granting 12 Motion to Dismiss for Failure to State a Claim. Signed by Judge Beth Bloom on 5/8/2022. See attached document for full details. (pc)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 22-cv-20530-BLOOM/Otazo-Reyes
CESAR A. SALAZAR CANO,
Plaintiff,
v.
THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION (EEOC),
FLORIDA COMMISSION ON
HUMAN RELATIONS (FCHR), AND
BROWARD COUNTY PUBLIC SCHOOL (BCPS),
Defendants.
__________________________________________/
ORDER GRANTING MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant School Board of Broward County’s
(“Defendant” or “SBBC”)1 Motion to Dismiss, ECF No. [12] (“Motion”). On December 13, 2021,
pro se Plaintiff Cesar A. Salazar Cano (“Plaintiff”) filed an Answer to Defendant School Board’s
Motion to Dismissal, ECF No. [15] (“Response”), to which Defendant filed a Reply, ECF No. [21]
(“Reply”). The Court has considered the Motion, the record, the applicable law, and is otherwise
fully advised. For the reasons set forth below, the Motion is granted.
I.

BACKGROUND
On February 22, 2022, Plaintiff filed his Complaint against Defendants Equal Employment

Opportunity Commission (“EEOC”), Florida Commission on Human Relations (“FCHR”), and
SBBC (collectively, “Defendants”). See ECF No. [1] (“Complaint”). According to the Complaint,
Plaintiff filed a charge of discrimination against the SBBC with the FCHR, see id. at 1, the charge

The summons and the Complaint refer to Defendant as “Broward County Public Schools,” but Defendant
notes that the correct name of the entity is the “School Board of Broward County.” See ECF No. [12] at 1,
n.1.
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was transferred to the EEOC for investigation, see id. at 2-3, the EEOC failed to timely and
adequately investigate the charge, see id. at 3-4, the EEOC eventually determined that the charge
was not viable, and issued a notice of right to sue, see id. at 6. Defendants have conspired to deprive
Plaintiff of his rights, see id. at 10-11. Plaintiff thus seeks relief under the Federal Tort Claims Act
(“FTCA”) pursuant to 28 U.S.C. § 1346(b) and Conspiracy against Rights pursuant to 18 U.S.C.
§ 241. See ECF No. [1] at 1, 10-11.
Defendant now requests that the Court dismiss Plaintiff’s Complaint with prejudice. See
ECF No. [12]. Defendant argues that (1) Defendant is a governmental entity organized and existing
under the laws of the State of Florida and not subject to liability under the FTCA; (2) the Complaint
fails to set forth any facts to plead a plausible claim that Defendant conspired with the EEOC
and/or the FCHR to deprive Plaintiff of any rights he may have had to pursue a claim of
discrimination against Defendant; and (3) Plaintiff’s Title VII claim against Defendant is time-barred
and any amendment of the Complaint would be futile. See id. at 2. Plaintiff responds that the Court

should deny the Motion because he is not asserting an FTCA claim or a Title VII employment
discrimination claim against Defendant, but a “conspiracy” claim. See ECF No. [15] at 2-3.
Plaintiff does not appear to meaningfully respond to Defendant’s remaining arguments. See
generally id.
II.

LEGAL STANDARD
A pleading 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). Although a complaint “does not need detailed factual
allegations,” it must provide “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L.Ed.2d 929, (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173
L.Ed.2d 868 (2009) (explaining that Rule 8(a)(2)’s pleading standard “demands more than an
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unadorned, the-defendant-unlawfully-harmed-me accusation”). Additionally, a complaint may not
rest on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678, 129
S. Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955). “Factual allegations must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct.
1955. If the facts satisfy the elements of the claims asserted, a defendant’s motion to dismiss must
be denied. Id. at 556.
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, including documents referred to in the complaint that are central to the claim.
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
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Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
As a final note, pro se filings are “held to a less stringent standard than [filings] drafted by
attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998). This leniency, however, does not confer on pro se litigants “a right to
receive special advantages not bestowed on other litigants.” Procup v. Strickland, 760 F.2d 1107,
1115 (11th Cir. 1985). For example, pro se litigants are nonetheless required to abide by the Local
Rules and the Federal Rules of Civil Procedure. Id.; Meduty v. Ga. Dep’t of Admin. Servs., 614 F.
App’x 401, 402-03 (11th Cir. 2015) (citing Tannenbaum, 148 F.3d at 1263; McNeil v. United
States, 508 U.S. 106, 113 (1993)). Moreover, courts cannot serve as de facto counsel for an
unrepresented party and cannot rewrite a deficient filing for the sake of sustaining an action.
Jarzynka v. St. Thomas Univ. of Law, 310 F. Supp. 2d 1256, 1264 (S.D. Fla. 2004). Nor may courts
simply “fill in the blanks” to infer a litigant’s claim. Brinson v. Colon, No. CV411-254, 2012 WL
1028878, at *1 (S.D. Ga. Mar. 26, 2012); see also Bivens v. Roberts, No. 2:08CV026, 2009 WL
411527, at *3 (S.D. Ga. Feb. 18, 2009) (“[J]udges 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))).
III.

ANALYSIS
Upon review of the pleadings, Plaintiff’s claims against Defendant must be dismissed. As

an initial matter, Plaintiff concedes that he is not asserting an FTCA claim or a Title VII
employment discrimination claim against Defendant. See ECF No. [15] at 3 (“I did not file a
complaint for DISCRIMINATION against the School Board . . . . It is totally clear that the School
Board is not sued under the FTCA laws. Only the EEOC is under the responsibility of the FTCA”).
As such, any allegations in the Complaint in support of Plaintiff’s FTCA claim and Title VII
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employment discrimination claim against the SBBC have been effectively withdrawn and are no
longer viable.
Plaintiff’s only remaining claim appears to be a claim of Conspiracy against Rights
pursuant to 18 U.S.C. § 241. See ECF No. [1] at 10-11. However, “Section 241 is a criminal statute
and doesn’t provide a civil cause of action.” See Anderson v. Perez, 860 F. App’x. 688, 690 (11th
Cir. July 12, 2021) (citing Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir. 1960)). As such,
Plaintiff does not specify the legal basis for the relief that he seeks.2
As a final note, the Court agrees with Defendant that any amendment to the Complaint
would be futile considering Plaintiff’s concession that he is not asserting an FTCA claim or a Title
VII employment discrimination claim against Defendant and the fact that Plaintiff is not entitled
to any relief under 18 U.S.C. § 241. Further, Plaintiff does not seek leave to amend his Complaint
and any attempt would be futile. Therefore, the Court need not grant Plaintiff an opportunity to
amend the Complaint, and Plaintiff’s claims against SBBC must be dismissed with prejudice.
IV.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff’s claims against Defendant School Board of Broward County are
DISMISSED WITH PREJUDICE.
2. Plaintiff’s claims shall proceed against the remaining Defendants.

Further, to state a civil conspiracy claim, the complaint must allege “(a) an agreement between two or
more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt
act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the
conspiracy.” See Cordell Consultant, Inc. Money Purchase Plan and Trust v. Abbott, 561 F. App’x. 882,
886 (11th Cir. 2014). The Complaint is devoid of any factual allegations to plausibly state a civil conspiracy
claim against Defendant.
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DONE AND ORDERED in Chambers at Miami, Florida, on May 8, 2022.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
Cesar A. Salazar Cano
7210 Lake Circle Drive
Apt 103
Margate, FL 33063
PRO SE

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