United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE UNITED STATES DISTRICT JUDGE
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.
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.
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.
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,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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.
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.
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).
Substantive Due Process
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