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 SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on defendant City of Cape
Coral's Motion to Dismiss for Failure to State a Claim
(Doc. #39) filed on December 29, 2017. Plaintiff filed a
Response in Opposition (Doc. #410) on January 31,
2018. For the reasons set forth below, the
Motion is granted with leave to amend.
March 6, 2017, plaintiff pro se Joseph D. Agostino
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 for violations of his civil rights. 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) and
an Amended Complaint Statement of Claims (Doc. #26).
December 6, 2017, the Court granted defendant's Motion to
Dismiss the Amended Complaint for failure to plead sufficient
allegations, with leave to file a Second Amended Complaint.
(Doc. #37.) In that Order, the Court noted that plaintiff did
not specify how each named defendant participated in the
violation of his civil rights and failed to indicate how he
was discriminated against based on his disability. The Court
informed plaintiff that the Second Amended Complaint must
specify the actions of each defendant individually without
lumping defendants together and each claim must be stated in
a separate count. (Id. at 8.)
filed a Second Amended Complaint on December 20, 2017 (Doc.
#38), alleging that the Code Enforcement City of Cape Coral
entered his property without a warrant in violation of the
Fourth, Fifth, and Fourteenth Amendments of the U.S.
Constitution. Plaintiff also names numerous other Cape Coral
officials and employees of the City's Department of
Community Development, sued in their individual and official
capacities. Plaintiff also cites the Florida Constitution.
Plaintiff further alleges that defendants violated the
Americans with Disabilities Act (ADA) by denying him easy
access to his boat, which plaintiff states is therapeutic for
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).
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) (internal 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.
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.
claims stem from Code Enforcement Officer Suzanne
Naughton's entry onto his residential property in Cape
Coral to post ordinance violations. (Docs. ##38, pp. 3-4;
38-2; 38-3, Notices of Violation.) Plaintiff's boat was
parked in his driveway in violation of Cape Coral Municipal
Ordinance 3.12.6, which requires that any boat or boat
trailer be stored behind a home. (Doc. #38-2.) Plaintiff
alleges that he is disabled and he must park his boat in
front of his house in order to hitch the boat to his vehicle.
He also alleges that being able to see the boat is
therapeutic to him and “no trespass” signs were
posted throughout his property.
Second Amended Complaint still lumps all defendants together
and fails to set forth how each defendant violated
plaintiff's civil rights into separate counts. For
example, plaintiff states that Special Magistrate Harold
Eskin heard testimony and ruled against him, but fails to
state how his actions violated plaintiff's rights.
Furthermore, the Second Amended Complaint includes a section
titled “Argument” and a 12-page summary of
Section 1983 law, inapplicable to this case and these
defendants. As currently pled, plaintiff again fails to state
Court will allow plaintiff one final opportunity to amend
before dismissing this case. In order to state a cause of
action that may move forward, in his Third Amended Complaint
plaintiff must articulate what each defendant did to violate
his civil rights. In doing so, plaintiff must specify the
actions of each defendant individually without lumping
defendants together as a collective defendant taking a
collective action. Pursuant to Federal Rule of Civil
Procedure 10, the allegations should be set forth in separate
numbered paragraphs, “each limited as far as
practicable to a single set of circumstances.”
Fed.R.Civ.P. 10(b). Further, each claim “founded on a