United States District Court, S.D. Florida
ORDER GRANTING DEFENDANT TOWN OF PALM BEACH'S
AMENDED MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT
L. ROSENBERG, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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].
STANDARD OF REVIEW
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).
I-Fourth Amendment Claim Under 42 U.S.C. §1983
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, ...