United States District Court, M.D. Florida, Fort Myers Division
JOSEPH D. AGOSTINO, Plaintiff,
CITY OF CAPE CORAL, CODE ENFORCEMENT CITY OF CAPE CORAL, MARINA SAWICKI, Mayor, SUZANNE NAUGHTON, Code Enforcement, RICHARD LEON, Code Enforcement Manager, CAROL RALL, Supervisor, and HAROLD S. ESKIN, Special Magistrate, Defendants.
OPINION AND ORDER
E. STEELE UNITED STATES DISTRICT JUDGE
matter comes before the Court on review of defendant's
Motion to Dismiss Amended Complaint (Doc. #29) filed on
August 25, 2017. Plaintiff filed a Statement of Record
Evidence Disability Discrimination: U.S. Supreme Court Cases
(Doc. #33) on November 20, 2017, which the Court will treat
as a response. For the reasons set forth below, the
motion will be granted.
Federal Rule of Civil Procedure 8(a)(2), a Complaint must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). This obligation “requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). To survive dismissal, the factual
allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative
level.” Id. at 555. See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This
requires “more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff,
Erickson v. Pardus, 551 U.S. 89 (2007), but
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth, ” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
“Factual allegations that are merely consistent with a
defendant's liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (citations omitted). Thus,
the Court engages in a two-step approach: “When there
are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Iqbal, 556
U.S. at 679.
March 6, 2017, plaintiff filed his original Complaint (Doc.
#1) against the City of Cape Coral, Code Enforcement for the
City of Cape Coral, the Mayor of Cape Coral, two employees of
Code Enforcement, and a Special Magistrate. On July 28, 2017,
before plaintiff elected to pay the filing fee, the
Magistrate Judge reviewed the original complaint for
sufficiency pursuant to 28 U.S.C. § 1915(a), and found
that it failed comply with Federal Rule of Civil Procedure 8,
and failed to present a plausible legal claim. Plaintiff was
provided the opportunity to file an amended complaint and
“encouraged to visit” the Court's website for
assistance. (Doc. #21.) On August 21, 2017, plaintiff paid
the filing fee and filed an Amended Complaint (Doc. #25).
with the Amended Complaint, plaintiff filed a separate
document entitled Amended Complaint Statement of Claims (Doc.
#26) asserting a First Claim for Relief under 42 U.S.C.
§ 1983 for violations of the Fourth and Fourteenth
Amendment to the United States Constitution without further
detail. The Court will read the documents together. The
Amended Complaint itself is only two pages, and plaintiff did
not reattach copies of the exhibits that were attached to the
original Complaint. The Court will also consider those as if
incorporated into the Amended Complaint by reference.
Amended Complaint, plaintiff alleges that the Code
Enforcement City of Cape Coral entered his property without a
warrant in violation of the Fourth Amendment of the U.S.
Constitution. Plaintiff also cites the Florida Constitution.
Plaintiff states that damages are still accumulating because
unlawful hearings are still being held and fines levied.
Plaintiff alleges that the City of Cape Coral, Code
Enforcement, and “its corrupt enforcers” are
liable for damages. Plaintiff also argues that the Americans
with Disabilities Act (ADA) requires a reasonable
modification because he is disabled, and that his civil
rights as a disabled person are being denied. Plaintiff makes
no specific factual allegations as to the City, Code
Enforcement, or the individuals named in the caption.
plaintiff's Statement of Record Evidence (Doc. #33),
construed as a response, plaintiff states that Code
Enforcement denied him a modification before a
“magistrate who is bought and paid for by the
counsel”, which is an act of conspiracy. Plaintiff also
states that his vehicles were taken from his yard and
auctioned by Code Enforcement even though he is a disabled
Veteran, and he was threatened with jail if he didn't
comply. None of these statements are contained in the Amended
Complaint, and neither is the referenced “evidence that
has been filed by me in this case.” Attached to the
original Complaint are: (1) a Notice of Violation indicating
that a violation of Cape Coral Code 3.12.6 had occurred at
the listed address on September 22, 2016, and that the boat
and trailer must be stored behind the house within 5 days
from receipt of notification; (2) an Acknowledgement of
Receipt indicating that a Notice of Hearing for April 20,
2017, was posted at the address on March 3, 2017 by Code
Enforcement Officer Suzanne Naughton; and (3) a Notice of
Hearing setting the public hearing before Cape Coral Code
Compliance Special Master Harold S. Eskin, which decision can
be appealed. (Doc. #1-1.)
pleading drafted by a party proceeding unrepresented (pro
se) is held to a less stringent standard than one
drafted by an attorney, and the Court will construe the
documents filed as a complaint and amended complaint
liberally. Jones v. Fla. Parole Comm'n, 787 F.3d
1105, 1107 (11th Cir. 2015). Nevertheless, “a pro se
pleading must suggest (even if inartfully) that there is at
least some factual support for a claim; it is not enough just
to invoke a legal theory devoid of any factual basis.”
Id. Construed liberally, plaintiff alleges a claim
under Section 1983, and under the ADA.
Section 1983, any person who under color of state law
subjects a citizen “to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, ” is liable. 42 U.S.C. § 1983. This requires
a showing of a state action, or an act under color of state
law attributable to the state that caused the deprivation of
a federal right. Flagg Bros. v. Brooks, 436 U.S.
149, 156 (1978). To sue the City of Cape Coral, a
“municipality cannot be held liable solely
because it employs a tortfeasor-or, in other words, a
municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Monell v.
Dep't of Soc. Servs. of City of New York, 436 U.S.
658, 691 (1978) ...