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Pillitieri v. City of Flagler Beach

United States District Court, M.D. Florida, Jacksonville Division

September 1, 2017

SALLY PILLITIERI, Plaintiff,
v.
CITY OF FLAGLER BEACH, Defendant.

          ORDER

          MARCIA MORALES HOWARD UNITED STATES DISTRICT JUDGE.

         THIS 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.

         I. Background[1]

         Pillitieri 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. ¶ 10.

         On 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).[2] 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.

         II. Standard of Review

         In 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 570).[3]

         III. Analysis

         A. Count I: Damages

         In 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)[4]); 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.

         B. Count II: Equal Protection

         In 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.[5] 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.

         The 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 at 1314.

         To 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 ...


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