United States District Court, N.D. Florida, Tallahassee Division
ORDER and REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
Plaintiff Mark Osterback filed a third amended complaint, ECF
No. 37, on January 30, 2017. Defendants previously filed a
motion for sanctions or, in the alternative, a motion for
more definite statement. ECF No. 38. That motion was denied.
ECF No. 41. Plaintiff's third amended complaint
[hereinafter “complaint”] presented two claims
(Counts I and II) challenging Fla. Stat. § 120.081(3)
and the repeal of Rule 64E-26. ECF No. 37. The claims were
found to be at least tangentially related and not in
violation of the prior Order entered by District Judge Mark
E. Walker, ECF No. 27. ECF No. 41.
filed a motion to dismiss for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b). ECF No.
45. Plaintiff was advised of his obligation to file a
response in opposition to the motion, ECF No. 46, and
Plaintiff's response was timely filed. ECF No. 51. The
motion is ready for a ruling.
motion for case status was filed by Plaintiff in late
November 2017. ECF No. 54. The motion was overlooked until
now, but issuance of this Report and Recommendation provides
case status. Therefore, that motion, ECF No. 54, is denied as
of the Third Amended Complaint, ECF No. 37
has sued Rick Scott, Governor the State of Florida, and
Celest Philip, the State Surgeon General. ECF No. 37 at 1. In
Count I, Plaintiff challenges Defendant Scott's
enforcement of Florida Statute § 120.81(e). Id.
at 6. That statute operates as the basis for Rule 33-102.202
of the Florida Administrative Code. Id. Plaintiff
alleges that because he is “a prisoner, [his]
participation in the APA [Administrative Procedure Act, Fla.
Stat. § 120] under § 120.81(3)” is limited.
Id. at 7-8. He further alleges that more onerous
requirements are placed on prisoners who desires to challenge
the validity of a rule. Id. at 8-9. Plaintiff
asserts that Defendant Scott's continued enforcement of
§ 120.81(3) prevents him “from challenging the
validity of amendments to, and repeals of, portions 64E-26,
other agency rules and agency statements meeting the APA
definition of rules.” Id. at 9-10.
two of the complaint alleges that Defendant Philip “has
refused to adopt a rule for providing 64E-26 rulemaking
notices” to prisoners. Id. at 10. Plaintiff
asserts that in February 2007, the Department of Health
repealed two sections, 64E-26.014 and .015, Id. at
11, but he was excluded from the administrative process.
Id. at 11-12. In 2010, additional rule changes were
made, which Plaintiff contends were an “invalid
exercise of delegated legislative authority as defined by
§ 120.52(8).” Id. at 14-15. Plaintiff
contends that both counts of the complaint are brought
pursuant to 42 U.S.C. § 1983. Id. at 15-16. He
claims in Count One that Defendant Scott has violated his
“rights to petition [the] government for redress of
grievances, to political speech through public interest
litigation, to access to court, to due process of law and to
equal protection under law” through Defendant
Scott's continued enforcement of § 120.81(3). He
claims in Count Two that his due process rights were violated
and he further seeks to bring state law claims pursuant to
this Court's supplemental jurisdiction. Id. at
16. Plaintiff seeks both declaratory and injunctive relief.
Id. at 17.
of Review The issue on whether a complaint should be
dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failing to
state a claim upon which relief can be granted is whether the
plaintiff has alleged enough plausible facts to support the
claim stated. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (retiring
the standard from Conley v. Gibson, 355 U.S. 41, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to "state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting
Twombly, 550 U.S. at 570, 127 S.Ct.
1955). “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 677 (citing Twombly, 550 U.S. at 556); see
also Speaker v. U.S. Dep't of Health, 623 F.3d
1371, 1380 (11th Cir. 2010). “The plausibility
standard” is not the same as a “probability
requirement, ” and “asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 677 (quoting Twombly,
550 U.S. at 556). A complaint that “pleads facts that
are ‘merely consistent with' a defendant's
liability, ” falls “short of the line between
possibility and plausibility.” Iqbal, 129556
U.S. at 677 (quoting Twombly, 550 U.S. at 557).
pleading standard is not heightened, but flexible, in line
with Rule 8's command to simply give fair notice to the
defendant of the plaintiff's claim and the grounds upon
which it rests. Swierkiewicz v. Sorema, 534 U.S.
506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (“Rule
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions.”). Pro se complaints
are held to less stringent standards than those drafted by an
attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th
Cir. 1986) (citing Haines v. Kerner, 404 U.S. 519,
520-521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)).
Nevertheless, a complaint must provide sufficient notice of
the claim and the grounds upon which it rests so that a
“largely groundless claim” does not proceed
through discovery and “take up the time of a No. of
other people . . . .” Dura Pharmaceuticals, Inc. v.
Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577
(2005) (quoted in Twombly, 550 U.S. at 558). The
requirements of Rule 8 do “not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions.” Iqbal, 556 U.S. at 678-79, 129
S.Ct. at 1949. A complaint does not need detailed factual
allegations to survive a motion to dismiss, but Rule 8
“demands more than an unadorned,
the-defendant-unlawfully- harmed-me accusation.” 556
U.S. at 678, 129 S.Ct. at 1949. “A pleading that offers
‘labels and conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not
do.'” Id. (quoting Twombly, 550
U.S. at 555). Thus, “conclusory allegations,
unwarranted factual deductions or legal conclusions
masquerading as facts will not prevent dismissal.”
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185
(11th Cir. 2003).
to Dismiss, ECF No. 45
assert a No. of reasons why Plaintiff's complaint should
be dismissed. ECF No. 45. One reason is that Defendant Scott
“is subject to dismissal as an improper party in this
action.” Id. at 12. Defendant argues that
“[t]he governor's general executive power to
enforce the laws under Article IV, § 1 of the Florida
Constitution is not a sufficient basis to name the governor
as a proper party when the plaintiff seeks to challenge the
constitutionality of a law.” Id. (citations
argues that this argument fails under Ex Parte Young and
claims that the Governor is an appropriate Defendant because
he appoints the secretary of each executive department which
is not led by an elected official. ECF No. 51 at 2-3.
Plaintiff states that the Governor leads the executive branch
of government to which the APA is applicable,  and he chairs the
Administration Commission which, in turn, appoints the
Director of the Department of Administrative Hearings [DOAH].
Id. at 2-3. Additionally, Plaintiff argues that the
Governor appoints the Secretary of the Department of
Management Services “which directly administers the
DOAH.” Id. at 5. Plaintiff contends that
Defendant's citation of cases supports his position, not
the Defendant's position. Id. at 3-6.
starting point to resolve this argument is the well
established rule that in challenging the constitutionality of
a statute, a plaintiff must bring the case “against the
state official or agency responsible for enforcing the
allegedly unconstitutional scheme.” ACLU v. The
Florida Bar,999 F.2d 1486, 1490 (11th Cir. 1993)
(citing Diamond v. Charles,476 U.S. 54, 64, 106
S.Ct. 1697, 1704, 90 L.Ed.2d 48 (1986) (“The conflict
between state officials empowered to enforce a law and
private parties subject to prosecution under that law is a
classic ‘case' or ‘controversy' within
the meaning of Art. III.”). “In a suit such as
this one, where the plaintiff seeks a declaration of the
unconstitutionality of a state statute and an injunction
against its enforcement, a state ...