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LeBlanc v. Town of Fort Myers Beach

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

August 21, 2019




         This matter comes before the Court on Defendants' Motions to Dismiss for Failure to State a Claim (Docs. ##16, 17) filed on July 8, 2019. Although directed to do so (Doc. #19), plaintiff pro se Martin G. LeBlanc did not respond. However, plaintiff did file a letter Notice of Unavailability (Doc. #15) on June 17, 2019, stating that he would be unavailable from June 15, 2019 to September 30, 2019, and no forwarding or temporary address was provided in the interim. Nonetheless, there is no prejudice to plaintiff as the Court finds that the Motions are granted with leave to amend.


         In this case plaintiff pro se Martin G. LeBlanc sues the Town of Fort Myers Beach (Town) and Molly Jacob, a Town code enforcement officer, for purportedly violating his Seventh and Fourteenth Amendment, Section 1, rights under the United States Constitution. Plaintiff's claim arose out of the Town's enforcement of certain code violations on his property at 230 Bahia Via, Fort Myers Beach, Florida, which plaintiff alleges are “false” and resulting in a lien being placed on his property. (Doc. #1.) Plaintiff alleges that the lien led to the loss of use of his property for refinancing and a grant from the Veteran's Administration. Although difficult to discern, it appears that plaintiff has attempted to apply for permits to adapt his home so that he may use his wheelchair, but the applications have been denied. Further, the work he has had done on his home has not been code compliant. He also states that he received a notice of violation for a fence on his property that was in place before he bought the home and states “this harassment has to stop.” (Doc. #1, p. 6.) Plaintiff's Complaint is handwritten on the “Complaint for a Civil Case” form provided by the Court to pro se litigants.

         Defendants move to dismiss, arguing that plaintiff fails to allege any actionable, cognizable constitutional deprivation and the Complaint fails to plead any facts giving rise to liability.


         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) (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.

         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.


         Although plaintiff alleges that his right under Section 1 of the Fourteenth Amendment were violated, plaintiff fails to specify which provision of Section 1 was violated - due process or equal protection. Based upon the vague allegations of the Complaint, the Court assumes that plaintiff believes his due process rights were violated.

         “Section 1983 creates a private cause of action for deprivations of federal rights by persons acting under color of state law.” Laster v. City of Tampa Police Dept., 575 Fed.Appx. 869, 872 (11th Cir. 2014) (citing 42 U.S.C. § 1983). “Persons” include individuals and municipalities and other local-government units. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). “[T]he Due Process Clause was intended to prevent government officials from abusing their power, or employing it as an instrument of oppression.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (internal quotations and citations omitted). The Fourteenth Amendment to the United States Constitution explicitly guarantees to each citizen that no State shall “deprive any person of life, liberty, or property, without due process of law ....” U.S. Const., amend. XIV, § 1. The Supreme Court has determined that the Due Process Clause provides both procedural and substantive rights. Zinermon v. Burch, 494 U.S. 113, 125 (1990); Doe v. Moore, 410 F.3d 1337, 1342 (11th Cir. 2005).

         A. Substantive Due Process

         The substantive due process component of the Due Process Clause protects only those rights that are “fundamental, ” that is, rights that are so implicit in the concept of ordered liberty that neither liberty nor justice would exist if they were sacrificed. Moore, 410 F.3d at 1342-43; McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir.1994) (en banc). “Fundamental rights are those rights created by the Constitution, ” Greenbriar Vill., L.L.C. v. Mountain Brook City, 345 F.3d 1258, 1262 (11th Cir.2003), and have not generally been extended to tort law. Skinner, 62 F.3d 344, 347 (11th Cir. 1995). The Court must analyze a substantive due process claim by first crafting a careful description of the asserted right and then determining whether that asserted right is one of the fundamental rights and liberties within the scope of substantive due process. Moore, 410 F.3d at 1343. “Conduct by a government actor that would amount to an intentional tort under state law would only rise to the level of a substantive due process violation if it ‘shocks the ...

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