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Dennis v. Brevard County

United States District Court, M.D. Florida, Orlando Division

March 23, 2018

JOHNNIE B. DENNIS, Plaintiff,
v.
BREVARD COUNTY and COMMISSIONERS, Defendants.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE

         This cause came on for consideration without oral argument on the following motion filed herein:

MOTION: MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (Doc. No. 9)FILED: January 22, 2018

THEREON it is RECOMMENDED that the motion be DENIED and Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE.

         I. FACTUAL BACKGROUND

         On November 16, 2017, Plaintiff, proceeding pro se, filed a complaint naming Curt Smith as the Defendant. Doc. No. 1. On the same day, Plaintiff filed a motion for leave to proceed in forma pauperis. Doc. No. 2. On January 12, 2018, the Court denied Plaintiff's motion to proceed in forma pauperis due to insufficient information regarding his assets, investments, or obligations. Doc. No. 7 at 2. On January 22, 2018, Plaintiff filed a renewed motion to proceed in forma pauperis (the “IFP Motion”) containing additional financial information. Doc. No. 9.

         On February 23, 2018, Plaintiff filed the operative complaint (the “Complaint”) naming Brevard County and its commissioners as Defendants. Doc. No. 13. Construing the facts of the Complaint liberally, the following facts are taken from the same. Defendant Brevard County is the owner of a gun range that is located in a residential area that is predominantly African-American. Id. at 1. Local and political organizations have requested that the County Commissioner take action to reduce the noise made by the gun range. Id. The County Commissioner, however, has ignored these requests, and no action has been taken despite a Florida law prohibiting backyard gun ranges in residential areas. Id.

         The Complaint alleges two claims under the United States Constitution. First, Plaintiff alleges that Defendants' failure to take any action on the gun range amounts to cruel and unusual punishment under the Eighth Amendment. Doc. No. 13 at 1. Second, Plaintiff alleges that Defendants' failure to take action on the gun range violated his Fourteenth Amendment right to the quiet enjoyment of property. Id. at 2. Plaintiff seeks an injunction to stop the noise coming from the gun range. Id.

         II. STANDARD OF REVIEW

         The Court must conduct a two-step inquiry when a plaintiff files a complaint and seeks leave to proceed in forma pauperis. First, the Court evaluates the plaintiff's financial status and determines whether he or she is eligible to proceed in forma pauperis. 28 U.S.C. §1915(a)(1). Second, the Court must review the complaint and dismiss the complaint if the action is frivolous or malicious, the complaint fails to state a claim on which relief may be granted, or the complaint seeks monetary relief against a defendant that is immune from such relief. 28 U.S.C. §1915(e)(2)(B)(i-iii). The Court must also dismiss the complaint if it determines that it has no subject matter jurisdiction over the claims asserted. See Arbaugh v. Y&H Corp., 546 U.S. 500, 502, 126 S.Ct. 1235, 1237, 163 L.Ed.2d 1097 (2006) (“[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the complaint must be dismissed in its entirety.”). When the Court reviews the complaint, it must be liberally construed, but the Court has no obligation to rewrite a complaint to establish subject matter jurisdiction, avoid frivolousness, or state a claim upon which relief can be granted. Campbell v. Air Jamaica, Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014).

         III. ANALYSIS

         A. Eighth Amendment

         Plaintiff alleges that Defendants' actions amounted to cruel and unusual punishment. Doc. No. 13 at 1. The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. The Eleventh Circuit, however, has held that the Eighth Amendment “applies only to punishments inflicted after conviction for crimes …” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1295 (11th Cir. 2005). See also D'Aguanno v. Gallagher, 50 F.3d 877, 879 n. 2 (11th Cir. 1995) (“The cruel and unusual punishment clause only protects people who have been convicted of a crime.”). Here, Plaintiff has not alleged that he was convicted of a crime or that Defendants' alleged behavior was punishment for any crime. Doc. No. 13 at 1-2. Accordingly, the undersigned finds that Plaintiff has failed to state a claim under the Eighth Amendment.

         B. Fourteenth Amendment

         Plaintiff also alleges that Defendants' actions violated his Fourteenth Amendment right to the quiet enjoyment of property. Doc. No. 13 at 2. The Fourteenth Amendment protects against deprivation by state action of a constitutionally protected interest in “life, liberty, or property” without due process of law. Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013). The Fourteenth Amendment's Due Process Clause provides two different kinds of constitutional protection: substantive due process and procedural due process. McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994). Plaintiff does not ...


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