United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Defendant's Motion
to Dismiss Plaintiff's Complaint (Doc. No. 6; Motion),
filed on September 14, 2016. On November 4, 2016, Plaintiff
Sally Pillitieri (Pillitieri) filed her Response and
Memorandum of Law in Opposition to Defendant's Motion to
Dismiss (Doc. No. 12; Response). Accordingly, this matter is
ripe for review.
is an individual who owns real property in Flagler Beach,
Florida (the Subject Property). Complaint (Doc. No. 2;
Complaint) ¶ 2. Defendant, the City of Flagler Beach
(the City), is a “municipality organized under the laws
of the state of Florida.” Id. ¶ 3. In the
Complaint, Pillitieri alleges that, on or about April 22,
2014, the City issued a building permit for the Subject
Property. Id. ¶ 5. Soon thereafter, on April
28, 2014, Pillitieri commenced work on the Subject Property.
Id. ¶ 6. Then, on May 8, 2014, the City issued
a stop work order stating that the April 22, 2014 building
permit had been “Issued in Error[.]” See
id. ¶ 7; see also Motion at 1. According
to Pillitieri, “[t]he stop work order was entered in
retaliation against [Pillitieri] under the pretenses of
construction design allegedly violating a setback
ordinance.” Complaint ¶ 8. Pillitieri further
alleges that she spent the next several months attempting to
obtain a variance from the City to continue work on the
Subject Property as planned. Id. ¶ 9. However,
her efforts were unsuccessful, and Pillitieri ultimately paid
an additional $115, 787.85 in construction costs and expenses
for “design alterations and repair work”
resulting from the City's revocation of the permit.
Id. ¶ 11. Pillitieri represents that, at some
point, the City offered to compensate her for the costs
incurred in reliance on “[the City's] issuance of
[the] initial building permit.” See id. ¶
August 1, 2016, Pillitieri filed the Complaint in state
court. See generally Notice of Removal (Doc. No. 1;
Notice of Removal), Exhibit 1: State Court Record. In the
Complaint, Pillitieri asserts a claim for
“damages” (Count I), a claim under 42 U.S.C.
§ 1983 for violation of the Equal Protection Clause of
the Fifth and Fourteenth Amendments to the United States
Constitution (Count II), and a claim under § 1983 for
violation of procedural due process, also pursuant to the
Fifth and Fourteenth Amendments (Count III). See
generally Complaint at 2-4. On September 6, 2016, the
City filed its Notice of Removal removing this case from the
Circuit Court of the Seventh Judicial Circuit in and for
Flagler County, Florida, to this Court. See Notice
at 1; Complaint at 1. Subsequently, on September 14, 2016,
the City filed the instant Motion. See Motion at 1.
Standard of Review
ruling on a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1
(2002); see also Lotierzo v. Woman's World Med. Ctr.,
Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition,
all reasonable inferences should be drawn in favor of the
plaintiff. See Omar ex. rel. Cannon v. Lindsey, 334
F.3d 1246, 1247 (11th Cir. 2003) (per curiam). Nonetheless,
the plaintiff must still meet some minimal pleading
requirements. Jackson v. BellSouth Telecomm., 372
F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted).
Indeed, while “[s]pecific facts are not necessary,
” the complaint should “‘give the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests.'” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). Further, the
plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “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.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). The “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.”
Twombly, 550 U.S. at 555 (internal quotations
omitted); see also Jackson, 372 F.3d at 1262
(explaining that “conclusory allegations, unwarranted
deductions of facts or legal conclusions masquerading as
facts will not prevent dismissal”) (internal citation
and quotations omitted). Indeed, “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions, ”
which simply “are not entitled to [an] assumption of
truth.” See Iqbal, 556 U.S. at 678, 680. Thus,
in ruling on a motion to dismiss, the Court must determine
whether the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Id. at
678 (quoting Twombly, 550 U.S. at
Count I: Damages
Count I of the Complaint, Pillitieri requests “damages
and attorneys' fees pursuant to 42 U.S.C. [§] 1983
and 42 U.S.C. § 1988.” Complaint ¶ 13. The
City construes this claim as one asserting a
“regulatory taking” or a claim of “inverse
condemnation” and argues that Pillitieri fails to state
a claim as to either. See Response at 3-4. In the
Response, Pillitieri states that “she has not alleged a
claim under either cause of action and has instead chosen to
seek damages pursuant to section(s) 1983 and 1988 for
deprivation of procedural due process and equal protection
rights.” Response at 5. Notably, in Count II,
Pillitieri asserts a violation of her right to equal
protection pursuant to § 1983, and in Count III she
asserts a violation of her right to procedural due process
pursuant to § 1983. As such, her claims for damages or
attorneys' fees in Count I pursuant to § 1983 are
redundant and due to be dismissed. To the extent Pillitieri
suggests that § 1988 provides an independent basis for
additional relief, she is mistaken. Section 1988 authorizes a
court to award attorneys' fees to a successful §
1983 plaintiff. See 42 U.S.C. § 1988(b).
However, the Eleventh Circuit has unequivocally held,
“[s]ection 1988 does not create an independent cause of
action for deprivation of constitutional rights . . .”.
McLaughlin v. City of LaGrange, 662 F.2d 1385, 1388
n. 1 (11th Cir. 1981) (per curiam) (citing Harding v. Am.
Stock Exch., Inc., 527 F.2d 1366 (5th Cir.
1976)); see also Estes v. Tuscaloosa Cnty.,
Ala., 696 F.2d 898, 900 (11th Cir. 1983) (per curiam).
Additionally, requests for attorneys' fees do not
constitute a separate cause of action. See generally Cook
v. Campbell, 482 F.Supp.2d 1341, 1353 n. 5 (M.D. Ala.
2007). Rather, Pillitieri's request for attorneys'
fees pursuant to § 1988 is appropriately included as
part of Pillitieri's prayers for relief in Counts II and
III, not as a separate claim. See id. As such, the
Court finds that - as a separate count - Count I is due to be
dismissed as unnecessary and redundant.
Count II: Equal Protection
Count II of the Complaint, Pillitieri alleges that, in
revoking her building permit, the City acted under color of
state law and deprived her of constitutionally protected
property rights. See Complaint ¶¶ 18-19.
She further asserts that, in doing so, the City
“treated [her] different[ly] than similarly situated
applicants whose building permits were issued and maintained
notwithstanding the fact that said permits were supported by
far less evidence of compliance.” Id. ¶
21. In the Motion, the City notes that to establish that
“she was treated differently from similarly situated
individuals, a plaintiff generally must identify
comparators.” Motion at 5 (quoting Decker v. Citrus
Cnty., No. 5:15-CV-24-OC-30PRL, 2015 WL 6956545, at *4
(M.D. Fla. Nov. 10, 2015)) (citing Crystal Dunes Owners
Ass'n Inc. v. City of Destin, Fla., 476 Fed.Appx.
180, 184-85 (11th Cir. 2012)). Because Pillitieri has not
done so, the City argues that Count II should be dismissed.
See id. at 6. In response, Pillitieri contends that
the Complaint contains the factual elements necessary to
sustain a cause of action by virtue of the inclusion of the
allegation that the City treated her differently as compared
to similarly situated applicants. See Response at 6.
Fourteenth Amendment to the United States Constitution
provides, in pertinent part: "No State shall make or
enforce any law which shall . . . deny to any person within
its jurisdiction the equal protection of the laws." U.S.
Const. amend XIV, § 1. This clause is commonly referred
to as the Equal Protection Clause and "is essentially a
direction that all persons similarly situated should be
treated alike." Alamo Rent-A-Car, Inc. v.
Sarasota-Manatee Airport Auth., 825 F.2d 367, 369 (11th
Cir. 1987); see also Vill. of Willowbrook v. Olech,
528 U.S. 562, 564 (2000) (explaining that "the purpose
of the equal protection clause of the Fourteenth Amendment is
to secure every person within the State's jurisdiction
against intentional and arbitrary discrimination, whether
occasioned by express terms of a statute or by its improper
execution through duly constituted agents") (citation
and internal quotation marks omitted); Campbell v.
Rainbow City, Ala., 434 F.3d 1306, 1313 (11th Cir.
2006). Thus, "[d]ifferent treatment of dissimilarly
situated persons does not violate the equal protection
clause." E & T Realty v. Strickland, 830
F.2d 1107, 1109 (11th Cir. 1987); Campbell, 434 F.3d
prevail on an equal protection claim under § 1983 - in
particular a “selective enforcement” claim - a
plaintiff must show: “(1) that [she was] treated
differently from other similarly situated individuals, and
(2) that [the d]efendant unequally applied a facially neutral
ordinance for the purpose of discriminating against [the
p]laintiff[.]” Campbell, 434 F.3d at 1314
(citing Strickland v. Alderman, 74 F.3d 260, 264
(11th Cir. 1996)). As the parties note, see Motion
at 5; Response at 6, the Supreme Court has held that the
Equal Protection Clause is implicated in “class of
one” claims “where the plaintiff alleges that she
has been intentionally treated differently from others
similarly situated and that there is no rational basis for
the difference in treatment.” Campbell, 434
F.3d at 1314 (quoting Vill. of Willowbrook, 528 U.S.
at 564). Consistent with this authority, the Eleventh Circuit
has determined that, with respect to the similarly situated
requirement, “class of one plaintiffs may [at the
motion to dismiss stage] fairly be required to show that
their professed comparison is sufficiently apt.”
See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,
1205 (11th Cir. 2007) (citations and internal quotations
omitted) (collecting cases). As such, to state a valid
“class of one” claim, a plaintiff must