Barteet v. Eismann et al

Filing 57

OPINION AND ORDER granting in part and denying in part 27 Motion to Dismiss Amended Complaint. Signed by Judge Kenneth A. Marra on 3/23/2014. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-80434-CIV-MARRA
DOMINIQUE MCCLAIN BARTEET,
Plaintiff,
vs.
KURT EISMANN, JOEL P. STEPHENSON,
PALM BEACH COUNTY PLANNING
ZONING & BUILDING DEPARTMENT and
CODE ENFORCEMENT DEPARTMENT,
Defendants.
_____________________________________/
OPINION AND ORDER1
This cause is before the Court upon Defendants’ Motion to Dismiss Amended Complaint
(DE 27). Plaintiff has filed a response (DE 29). No reply memorandum was filed. The Court
has carefully considered the Motion and is otherwise fully advised in the premises.
I. Background
Plaintiff Dominique McClain Barteet (“Plaintiff”) has brought a one count Amended
Complaint pursuant to 42 U.S.C. § 1983 for a violation of equal protection under the Fourteenth
Amendment of the United States Constitution. (Am. Compl., DE 26.) The Amended Complaint
is brought against Defendants Kurt Eismann, as the Code Enforcement Director for Palm Beach
County’s Code Enforcement Division, in his individual and official capacity; Joel Stephenson, as
a structural building inspector employed by Palm Beach County’s Planning, Zoning and Building
Department, in his individual and official capacity; and Richard Gathright, as a deputy building

1

The Court presumes familiarity with its prior Orders.

official employed by Palm Beach County’s Planning, Zoning and Building Department, in his
official capacity. (Am. Compl. ¶ ¶ 5-7.) The Amended Complaint makes the following
allegations:
Plaintiff bought a home in 2007 in Palm Beach Gardens, Florida, which did not have a
pool barrier fence at the time of purchase. (Am. Compl. ¶ ¶ 9-11.) A side yard fence was built on
the northern side of Plaintiff’s house that same year. (Am. Compl. ¶ 12.) That fence was not a
swimming pool barrier fence, nor did it encompass the swimming pool. (Am. Compl. ¶ 13.)

At

some point, Plaintiff’s northern neighbor started construction on his property that caused damage
to Plaintiff’s side yard fence. (Am. Compl. ¶ ¶ 15-17.) On March 17, 2011, Plaintiff contacted
the County’s Planning, Zoning and Building Department to complain about her neighbor’s
activities. (Am. Compl. ¶ 19.) This resulted in the County citing Plaintiff for failing to have a
pool barrier fence. (Am. Compl. ¶ 20.) Thereafter, Plaintiff installed a six foot high wood fence.
(Am. Compl. ¶ 21.) On June 13, 2011, Stephenson ordered Plaintiff to raise the fence “higher
than is allowed by law.” (Am. Coml. ¶ 46.) Stephenson cited Plaintiff for a violation of Florida
Statute § 162.04(2)2 and fined Plaintiff $500.00 a day. (Am. Compl. ¶ ¶ 50-51.)
On June 16, 2011, Plaintiff spoke to Eismann on the telephone. Eismann stated he would
continue to fine Plaintiff and then used profanity and hung up the telephone. (Am. Compl. ¶ ¶ 5760.) As the code enforcement director, there was no automatic review of Eismann’s decisions.
(Am. Compl. ¶ 66.) Eismann was the final decision maker and also possessed final policy

2

The Amended Complaint cites this statute. However, this statute merely provides the
definition of a code inspector as “any authorized agent or employee of the county or municipality
whose duty it is to assure code compliance.” Florida Statute § 162.04(2).
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making authority. (Am. Compl. ¶ ¶ 65, 67.)
Next, Plaintiff was ordered to put a four foot gate on her dock and an alarm on a gate that
had a self-closing latch. (Am. Compl. ¶ ¶ 70-71.) On June 22 and 23, 2011, Plaintiff was cited
by Stephenson for a pool barrier violation, claiming that the seawall was not 48 inches high.
(Am. Compl. ¶ 79.) However, the seawall was over 48 inches high. (Am. Compl. ¶ 80.) On June
24, 2011, Gathright walked on Plaintiff’s seawall and Plaintiff told him that her northern
neighbor was in violation of setbacks. (Am. Compl. ¶ ¶ 84-85.) Nonetheless, he issued a
certificate of occupancy to the northern neighbor. (Am. Compl. ¶ 89.) In addition, Stephenson
“allowed a setback violation” on the part of Plaintiff’s northern neighbor in the same area where
Plaintiff’s fence violation was observed. (Am. Compl. ¶ ¶ 18, 26.) Stephenson is a “final
decision maker.” (Am. Compl. ¶ 52.)
Plaintiff’s southern neighbor has an outdoor pool and a dock, but does not have a pool
barrier or a manmade seawall. (Am. Compl. ¶ ¶ 33-38.) Plaintiff’s northern neighbor has a four
foot pool barrier fence. (Am. Compl. ¶ 44.) Plaintiff, as well as her southern and northern
neighbors, live adjacent to the intracoastal waterway in single-family homes and have outdoor
pools. (Am. Compl. ¶ 31-33.)
Defendants move to dismiss on the following bases. With respect to Gathright,
Defendants claim Plaintiff untimely added this Defendant. In addition, the Amended Complaint
does not claim Gathright is an official policymaker and the factual allegations do not support any
finding that he is an official policymaker. With respect to Stephenson, the official capacity claim
fails because there is no allegation he is an official policymaker and the factual allegations do not
establish, as a matter of law, that he is a final decision maker. Next, with respect to Eismann, the
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alleged facts do not support the conclusion that he is an official policymaker. Defendants also
challenge the equal protection clause claim, contending that the facts do not allege a proper
comparator.
II. Legal Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme
Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual allegations must be enough to raise a right to
relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted).
"To 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." Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. Thus, "only a complaint that states a
plausible claim for relief survives a motion to dismiss." Id. at 1950. When considering a motion
to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a
plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984).

4

III. Discussion
The Court’s prior Order (DE 25) addressed several pleading deficiencies in the original
complaint and instructed Plaintiff on necessary amendments. The original complaint sought to
bring an equal protection claim against both the County as well as Defendants in their individual
capacities. With respect to the entities being sued, one area that needed to be clarified was
liability against the municipality. Specifically, the Court instructed Plaintiff to provide
allegations that the complained-of actions were taken by either an official policy maker or were
in execution of an official custom or policy of the County. Additionally, the Court explained
that, with respect to the liability of Defendants in their individual capacities (as opposed to the
County), Plaintiff must amend the original complaint to include allegations that these
individually named Defendants were official decision makers and from where their authority
stemmed. Finally, the Court directed Plaintiff to re-plead the equal protection claim.
Turning first to municipal liability, the Amended Complaint alleges that Eismann is a
final policymaker. (Am. Compl. ¶ 65.) Defendants, however, claim that the allegations only
demonstrate that Eismann implements existing county policy, rather than making official policy.
Defendants rely on the following provisions of state law in arguing that Eismann is not a final
policy maker:
Florida Statute 162.06 Enforcement Procedure
(1) It shall be the duty of the code inspector to initiate enforcement proceedings of the
various codes; however, no member of a board shall have the power to initiate such
enforcement proceedings.
(2) Except as provided in subsections (3) and (4), if a violation of the codes is found, the
code inspector shall notify the violator and give him or her a reasonable time to correct
the violation. Should the violation continue beyond the time specified for correction, the
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code inspector shall notify an enforcement board and request a hearing. The code
enforcement board, through its clerical staff, shall schedule a hearing, and written notice
of such hearing shall be hand delivered or mailed as provided in s. 162.12 to said violator.
At the option of the code enforcement board, notice may additionally be served by
publication or posting as provided in s. 162.12. If the violation is corrected and then
recurs or if the violation is not corrected by the time specified for correction by the code
inspector, the case may be presented to the enforcement board even if the violation has
been corrected prior to the board hearing, and the notice shall so state.
(3) If a repeat violation is found, the code inspector shall notify the violator but is not
required to give the violator a reasonable time to correct the violation. The code
inspector, upon notifying the violator of a repeat violation, shall notify an enforcement
board and request a hearing. The code enforcement board, through its clerical staff, shall
schedule a hearing and shall provide notice pursuant to s. 162.12. The case may be
presented to the enforcement board even if the repeat violation has been corrected prior to
the board hearing, and the notice shall so state. If the repeat violation has been corrected,
the code enforcement board retains the right to schedule a hearing to determine costs and
impose the payment of reasonable enforcement fees upon the repeat violator. The repeat
violator may choose to waive his or her rights to this hearing and pay said costs as
determined by the code enforcement board.
(4) If the code inspector has reason to believe a violation or the condition causing the
violation presents a serious threat to the public health, safety, and welfare or if the
violation is irreparable or irreversible in nature, the code inspector shall make a
reasonable effort to notify the violator and may immediately notify the enforcement board
and request a hearing.
....
Fla. Stat. § 162.06.
Florida Statute 162.07 Conduct of hearing
(1) Upon request of the code inspector, or at such other times as may be necessary, the
chair of an enforcement board may call a hearing of an enforcement board; a hearing also
may be called by written notice signed by at least three members of a seven-member
enforcement board or signed by at least two members of a five-member enforcement
board. . .
(4) At the conclusion of the hearing, the enforcement board shall issue findings of fact,
based on evidence of record and conclusions of law, and shall issue an order affording the
proper relief consistent with powers granted herein. The finding shall be by motion
approved by a majority of those members present and voting, except that at least four
members of a seven-member enforcement board, or three members of a five-member
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enforcement board, must vote in order for the action to be official. . .
Fla. Stat. § 162.07.
Palm Beach County Code, Chapter 14, Article I, Division 6, Sec. 14-14 Violations
(b) Enforcement. The provisions of this code shall be enforced by:
(1) Special magistrate pursuant to the authority granted by F.S. § 162.01 et seq., as may
be amended;
(2) The board of county commissioners through its authority to enjoin and restrain any
person violating the code;
(3) Palm Beach County through the prosecution of violations in the name of the State of
Florida pursuant to the authority granted by F.S. § 125.69,3 as may be amended. The code
enforcement director may pursue these or any other enforcement remedies available to
and applicable to the county;
(4) Article 10 of the Palm Beach County Unified Land Development Code; or
(5) Chapter 8.5, the Citation System Ordinance.
Palm Beach Count Code Chapter 14, Article I, Division 6, Sec. 14-14 (2003),
http://www.pbcgov.com/pzb/codeenforcement/property_maintenance_code.pdf
Plaintiff does not challenge the applicability of these provisions. 4 Plaintiff also agrees
that the issue of whether an official has final authority to establish municipal policy is a question
of law for the Court to decide. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).
Although Plaintiff contends that Eismann’s decisions were not subject to review and points to
allegations that there was no mandatory board proceeding, Plaintiff cannot create a question of

3

This provision permits code inspectors to issue citations. Florida Statute § 125.69.

4

The parties quibble over the applicable Palm Beach County ordinance, however, both
versions relied upon by the parties have the same language. Plaintiff refers to the building code
in its Amended Complaint (Am. Compl. ¶ 22) but does not explain how that code would apply to
a determination of a final policymaker.
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fact relative to the question of whether Eismann is a final policy maker simply by making these
bald, conclusory allegations, especially where Florida state and Palm Beach County law place
final authority with the enforcement board. Thus, the Court finds, as a matter of law, that
Eismann is not a final policymaker. The Court finds that any amendment on this point would be
futile.
Plaintiff also claims that the Amended Complaint sufficiently alleges a custom or policy,
which is an alternative method by which to establish municipal liability. Brown v. City of Fort
Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) (Absent a decision by a policymaker, liability
against a municipality may be based on custom and requires a plaintiff to establish “a widespread
practice that, although not authorized by written law or express municipal policy, is
so permanent and well settled as to constitute a custom or usage with the force of law.”) Plaintiff
claims Stephenson’s actions “correlate with [Eismann’s] threat and intimidation.” (Resp. at 11.)
In support, Plaintiff states that she spoke about the harassment she experienced to numerous
County employees and that Stephenson cited Plaintiff for having a seawall that was not 48 inches
high when the seawall was 48 inches high. (Resp. at 12.) Simply put, the Court does not
understand what custom or policy these allegations are attempting to allege. Nonetheless, the
Court will permit Plaintiff one more opportunity to amend to establish municipal liability by
virtue of a custom or policy. 5
5

Gathright is only named in his official capacity and Defendants seek dismissal of him as
duplicative of the claims brought against Eismann and Stephenson. The Court rejects this
contention, noting that official-capacity claims nominally raised against individual government
officials are “routinely litigated to conclusion on the merits as the functional equivalent of a
direct suit against the municipality itself.” Patterson v. Walden, No. 13–0109–WS–B, 2013 WL
3153761, at * 3 (S.D. Ala. June 18, 2013). Thus, all official capacity claims against the three
named Defendants may proceed. Defendants also complain that adding Gathright is untimely
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Next, the Court addresses the liability of Defendants sued in their individual capacities.
Here, the Amended Complaint simply alleges that Eismann and Stephenson were final decision
makers. (Am. Compl. ¶ ¶ 52, 67.) In her response memorandum, Plaintiff alleges that Eismann
is a final decision maker because Palm Beach County Code states “[t]he Code Enforcement
Director may pursue these or any other enforcement remedies available to and applicable to Palm
Beach County” and “there can be no dispute that the placement of ‘or’ in the ordinance gave [ ]
Eismann a wide range of power as a decision maker to harass and intimidate plaintiff.” (Resp. at
14.) Additionally, Plaintiff contends Stephenson “acted to fail plaintiff’s pool barrier” which
resulted in a $500 a day fine without review. 6 (Resp. at 14-15.) Plaintiff’s argument, however,
ignores state law that the final decisions regarding code enforcement is made by the code
enforcement board. Fla. Stat. § 162.06. Where the biased actor cannot make the final decision
regarding the allegedly unconstitutional act, the causal link is broken and liability cannot be
imposed against the individual. See Stimpson v. City of Tuscaloosa, 186 F.3d 1328 (11th Cir.
1999). Finally, Plaintiff’s reliance on Quinn v. Monroe County is unavailing because in that
case, the county administrator not only had the authority to recommend termination, but also to
immediately effectuate it. Quinn v. Monroe County, 330 F.3d 1320, 1328 (11th Cir. 2003). Under

because Plaintiff did not seek a two day extension of time. Plaintiff’s Amended Complaint is
timely based upon the 20 day time frame given by the Court and the additional three days
provided by the Federal Rules of Civil Procedure . See Fed. R. Civ. P. 6(a), (d); Hoewischer v.
Cedar Bend Club, Inc., 877 F. Supp. 2d 1212, 1216 (M.D. Fla. June 28, 2012).
6

Defendants complain that Plaintiff has identified Stephenson as both a structural
inspector and has someone who has issued a citation, which is inconsistent because structural
inspectors do not issue citations. (Mot. at 5-6.) Whether or not Stephenson is a structural
inspector or code enforcer is something that cannot be resolved based on a motion to dismiss.
But it is also entirely unclear how it makes a difference to the Court’s analysis here.
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Florida law, upon violation, the code enforcer “ shall notify an enforcement board and request a
hearing” and the enforcement board “shall issue an order.” Florida Statute § § 162.06, 162.07
(emphasis added). Hence, neither Eismann nor Stephenson have ultimate authority or discretion
in determining whether there has been a violation of the code. Thus, the equal protection claim
brought against Defendants in their individual capacities cannot stand and any amendment would
be futile.7
The Court will now discuss the “class of one” equal protection claim. The Court’s prior
Order instructed Plaintiff to identify how her neighbors are similarly situated. The Amended
Complaint states that Plaintiff and her southern and northern neighbors live in single-family
residences, are adjacent to the intracoastal waterway and have outdoor pools (Am. Compl. ¶ ¶
31-33.)
As discussed in the Court’s prior Order:
To prevail on a “class of one” equal protection claim, [p]laintiffs must show they were
intentionally treated differently from others who were similarly situated and that there is
no rational basis for the difference in treatment. To be similarly situated, the comparators
must be prima facie identical in all relevant respects.

Grider v. City of Auburn, Ala., 618 F.3d 1240, 1263-64 (11th Cir. 2010) (internal quotation
marks and citations omitted). Plaintiff claims imposing on her a fence height, a 48 inch foot
seawall, a gate on a dock and an alarm for a gate are discriminatory because the southern
neighbor was not required to comply in this manner. Likewise, unlike her northern neighbor,
Plaintiff is complaining that she was required to have a six foot fence. At this stage in the
proceeding, the Court finds that Plaintiff has adequately alleged the similarly-situated
7

For this reason, the Court need not address the issue of qualified immunity.
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comparators.8 Given that the claims against Defendants in their individual capacities have been
dismissed, the equal protection claim will now only proceed against the County, assuming that
Plaintiff can allege that the County had a custom or policy to violate Plaintiff’s constitutional
rights.
IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants’ Motion to
Dismiss Amended Complaint (DE 27) is GRANTED IN PART AND DENIED IN PART. The
court dismisses with prejudice the equal protection claim brought against Defendants in their
individual capacities. The Court will permit Plaintiff to amend her equal protection claim
brought against Defendants in their official capacities to demonstrate municipal liability on the
basis of a custom or policy which must be repled.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 23rd day of March, 2014.
______________________________________
KENNETH A. MARRA
United States District Judge

8

The Court rejects Defendant’s reliance on Hawkins v. Eslinger, No.
6:07-cv-1261-Orl-19GJK, 2008 WL 2074409 (M.D. Fla. May 15, 2008). In that case, the
plaintiff “omit[ted] all factual details, alleging only that ‘similarly situated complainants and
victims of domestic violence in Seminole County’ exists.” Id. at * 2. Furthermore, while
Defendants claim the claim cannot proceed because the Amended Complaint alleges differences
between Plaintiff and her neighbors (Am. Compl. ¶ ¶ 36-38, 44), the significance of these
differences are best resolved at summary judgment when a complete record is before the Court.
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