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Osterback v. Scott

United States District Court, N.D. Florida, Tallahassee Division

January 30, 2018

MARK OSTERBACK, Plaintiff,
v.
RICK SCOTT and CELESTE PHILIP, M.D., Defendants.

          ORDER and REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

         Pro se 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)[1] 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.

         Defendants 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.

         A 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 moot.

         Allegations of the Third Amended Complaint, ECF No. 37

         Plaintiff 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.[2] 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.

         Count 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.

         Standard of Review

         Standard 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).[3] “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).

         The 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).

         Motion to Dismiss, ECF No. 45

         Defendants 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 omitted).

         Plaintiff 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, [4] 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.

         The 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 ...


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