United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE JUDGE
THE COURT is Defendants' Motion to Dismiss Plaintiffs
Second Amended Complaint. (Dkt. 55). Plaintiff responded in
opposition. (Dkt 56). Upon consideration, Defendant's
motion is GRANTED. Plaintiffs Second Amended Complaint is
DISMISSED with prejudice.
filed his Second Amended Complaint (Dkt. 17) after an order
was entered dismissing his Amended Complaint (Dkt. 16).
However, in his Second Amended Complaint, Plaintiff merely
"restates the claims and allegations brought in the
amended complaint, " and then reasserts thirteen of the
same fifteen counts that he asserted in his Amended Complaint
(abandoning Counts 5 and 13). One substantive difference
between his Amended Complaint and the Second Amended
Complaint is that Plaintiff identifies the specific
Defendants he is bringing claims against in each count.
Compare (Dkt. 16) with (Dkt.
complaint must include "a short and plain statement of
the claim showing that the pleader is entitled to
relief." FED. R. Civ. P. 8(a)(2). The Second Amended
Complaint contains no new factual allegations, but rather
argues why the previously asserted allegations were
sufficient to show Plaintiffs entitlement to relief.
Accordingly, the Second Amended Complaint is due to be
dismissed for failure to state a claim for the same reasons
discussed in the order dismissing the Amended Complaint.
(See Dkt 16).
proceeding pro se, has had three opportunities to
bring a legally sufficient complaint against Defendants,
including two opportunities after being put on notice of the
deficiencies in his pleading. While apro se complaint
is construed liberally, "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." Campbell v. Air Jamaica
Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014).
claims against Defendants are largely unintelligible. They
include allegations such as "psychological warfare on a
subject unaware of such methods, " being "chipped
with a Trap & Trace electronic surveillance device in his
body, " and "being given food which influenced his
mental state, " as part of Defendants' "master
plan" to "force Plaintiff into an ideological state
of resentment towards the world so that he would join enemies
of the state and become unknowingly a tool for spying on
defendants' foreign enemies." (Amended Complaint,
Dkt. 15 at ¶¶ 11, 18, 34, 42, 54-55).
was previously admonished that "[f]ailure to state a
claim upon which relief can be granted in a Second Amended
Complaint may result in dismissal of this action."
(See Order, Dkt. 16 at p. 5); see also Marantes
v. Miami-Dade Cnty, 649 F.App'x 665, 673 (11th Cir.
2016) (per curiam). ("[O]ur case law does not require a
district court to give a pro se litigant multiple
opportunities to amend."). Despite this admonishment,
Plaintiff elected to simply restate the insufficient factual
allegations of the Amended Complaint, and essentially use the
Second Amended Complaint to assert why the original claims
are sufficient. Nothing suggests that another opportunity to
amend will yield cognizable claims against Defendants.
Defendants' Motion to Dismiss Plaintiffs Second Amended
Complaint (Dkt. 55) is GRANTED. All counts of Plaintiff s
Second Amended Complaint are DISMISSED with
prejudice. All pending motions are DENIED as moot. The
Clerk is directed to CLOSE the file.
 Defendants' motion to dismiss
(Dkt. 55) and Plaintiffs response (Dkt. 56) both address
whether Plaintiff can effectively incorporate and restate
allegations of a dismissed complaint in a subsequent amended
compiaint. This need not be resolved because Plaintiffs
restated allegations fail to state cognizable legal claims,
even if he is able to simply reassert allegations from a
 The Second Amended Complaint also
purports to include a "Motion to Proceed in Forma
Pauperis" and a "Motion to Appoint Counsel."
(See Dkt. 17at p. 4). Plaintiff subsequently filed the
motions separately. (See Motion to Proceed in Forma
Pauperis, Dkt. 20; Motion to Appoint Counsel, Dkt. 21). The
motion to proceed in forma pauperis was granted,
(Dkt. 27), and the motion to appoint counsel was denied,
 Specifically, Counts 1, 2, and 12 for
"conspiracy against rights, " "deprivation of
rights" and "abuse of due process" fail to
state claims because they are not cognizable against federal
agencies or individuals sued in their official capacities,
seeFDICv. Meyer,510 U.S. 471, 484-85 (1994);
McColIum v. Bolger, 794 F.2d602, 608 (11th Cir.
1986); Thibeaux v. U.S. Atty. Gen. , 27'5
F.App'x 889, 892 (11th Cir. 2008) (per curiam), and
because Plaintiff has not alleged that he exhausted all
administrative remedies to the extent he brings those claims
under the Federal Tort Claims Act, see ...