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Agostino v. City of Cape Coral

United States District Court, M.D. Florida, Fort Myers Division

December 6, 2017

JOSEPH D. AGOSTINO, Plaintiff,
v.
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

          JOHN E. STEELE UNITED STATES DISTRICT JUDGE

         This 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.[1] For the reasons set forth below, the motion will be granted.

         I.

         Under 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, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         In 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.

         II.

         On 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).

         Along 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.

         In the 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.

         In 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.)

         III.

         A 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

         Under 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) ...


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