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Parker v. Town of Palm Beach

United States District Court, S.D. Florida

June 19, 2017

ELLIS PARKER, Plaintiff,
v.
TOWN OF PALM BEACH and JOHN T. MORIARTY, individually, Defendants.

          ORDER GRANTING DEFENDANT TOWN OF PALM BEACH'S AMENDED MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT WITH PREJUDICE

          ROBIN L. ROSENBERG, UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on Defendant, Town of Palm Beach's, Amended Motion to Dismiss Plaintiff, Ellis Parker's Amended Complaint and Memorandum of Law [DE 12]. The Court has carefully considered this Motion, and the parties' respective responses in opposition thereto and replies in support thereof, and is otherwise fully advised in the premises. For the reasons set forth below, the Town's Motion is granted. Parker's Amended Complaint is dismissed without prejudice as to Counts I, III, and IV against the Town.

         I. BACKGROUND

         Plaintiff Ellis Parker ("Parker") has sued the Town of Palm Beach ("Town") and John T. Moriarty ("Moriarty"), individually, for alleged actions stemming from the alleged search in February 2014 of a vacant condominium he had recently purchased. See, Amended Complaint, [DE 8], ¶9. Parker has sued the Town alleging that it violated his Fourth Amendment rights to be free from illegal search and seizure under 42 U.S.C. §1983, trespassed on his property, and invaded his privacy interests. See Id. ¶¶ 29-34, 41-44 & 45-48. Parker also has a claim against Town code enforcement officer Moriarty for violating his Fourth Amendment rights under 42 U.S.C. §1983. Id. ¶¶ 35-40.

         Parker alleges that he bought condominium unit #9 at 2165 Ibis Isle Rd., which adjoined his original unit #8. Id. ¶¶ 1, 7. In February 2014, Parker allegedly had a cabinetmaker taking measurements in unit #9. Id. ¶ 9. The cabinetmaker was inside the unit when someone purportedly knocked at the front door and yelled "law enforcement." Id. ¶ 10. Parker claims Moriarty and Town officers opened the door and entered Parker's unit without permission. Id. ¶ 11. Parker further claims Moriarty and an officer stayed inside the unit and took pictures documenting renovations made to the unit. Id. ¶ 13.

         On March 20, 2014, the Town held a hearing before its Code Enforcement Board at which Parker was not present. Id. ¶ 16. At this meeting, Moriarty testified and produced photographs of the renovations made by Parker. Id. ¶ 17. On April 17, 2014, the Code Enforcement Board held another hearing, and assessed Parker fines until compliance with the Town Code was achieved. Id. ¶ ¶ 19-20. Compliance was achieved on July 23, 2014. Id. ¶ 21. A lien was entered against the unit due to unpaid fines and fees, and Parker has been unable to obtain any new permits to make renovations. Id. ¶¶ 23-24. Parker's wife has allegedly become debilitated, and Parker claims that he has been unable to make the renovations to accommodate his wife's needs. Id. ¶¶ 25-26.

         On April 10, 2017, the Town filed its Amended Motion to Dismiss Plaintiff's Amended Complaint with Incorporated Memorandum of Law. [DE 12]. On April 24, 2017, Parker filed his Memorandum in Opposition. [DE 18]. On May 1, 2017, the Town filed its Reply to Plaintiff's Memorandum in Opposition to Town's Motion to Dismiss. [DE 19].

         II. STANDARD OF REVIEW

         When deciding a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept all factual allegations as true and take them in the light most favorable to the plaintiff. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). However, a plaintiff is still obligated to provide grounds of his entitlement to relief which require more than labels, conclusions, and a formulaic recitation of the elements of a cause of action. See Id. at 561-563. Unwarranted deductions of fact in a complaint cannot be admitted as true for the purposes of testing the sufficiency of the allegations. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). The facts as pled must state a claim for relief that is plausible on the face of the pleading. Ashcroft v. Iqbal, 556 U.S. 662, 678-69 (2009).

         III. DISCUSSION

         Count I-Fourth Amendment Claim Under 42 U.S.C. §1983

         Parker has failed to allege a policy or custom of the Town by which he was harmed. Therefore, this claim must be dismissed as 42 U.S.C. § 1983 does not provide for liability under a theory of respondeat superior. See Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 403 (1997); Gold v. City of Miami, 151 F.3d 1346, 1351 (11th Cir. 1998). A plaintiff may only sue as municipal defendant under 42 U.S.C. § 1983 for a deprivation of a federal right for which a “policy” or “custom” was the moving force. Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 695 (1978). The Eleventh Circuit has phrased the test to bring a claim under 42 U.S.C. § 1983 as:

[T]o impose § 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a policy or custom that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.

Whittington v. Town of Surfside, 269 F. Appx 918, 921 (11th Cir. 2008) (citing McDowell v. Brown, 392 F.3d 1283, ...


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