United States District Court, S.D. Florida
ORDER GRANTING MOTION TO DISMISS AMENDED COMPLAINT
AND CLOSING CASE
L. ROSENBERG, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on Defendant's Motion
to Dismiss the Amended Complaint with Prejudice. DE 31. The
Court has carefully considered the Motion and Plaintiff's
Response, titled “Complaint for a Civil Case Alleging
Child Abuse, Physical and Psychological Abuse to a Child and
Handicap Adult and Response to Defendant's Motion to
Dismiss.” DE 32. For the reasons set forth below,
Defendant's Motion to Dismiss is granted.
procedural background, Plaintiff filed her first Complaint on
April 1, 2019, raising a claim of intentional infliction of
emotional distress against Defendant, her father. DE 1. The
Court referred Defendant's subsequent Motion to Dismiss
the Complaint to Magistrate Judge Shaniek M. Maynard.
See DE 8; DE 11.
Maynard issued a Report and Recommendation, recommending that
the Motion to Dismiss be granted and that the Complaint be
dismissed without prejudice. DE 24. Judge Maynard concluded
that Plaintiff failed to plead factual allegations that,
taken as true, established outrageous conduct sufficient to
state a claim for intentional infliction of emotional
distress. Judge Maynard also noted that the statute of
limitations may bar Plaintiff's claim.
Plaintiff's objection, the Court adopted Judge
Maynard's Report and Recommendation, granted the Motion
to Dismiss, and dismissed the Complaint without prejudice.
See DE 25; DE 28. The Court agreed that the
Complaint failed to state a plausible claim for intentional
infliction of emotional distress. DE 28. As Plaintiff had
included additional factual allegations in both her Response
to the Motion to Dismiss and in her Objections that she had
not included in the Complaint, the Court ordered Plaintiff to
include in her Amended Complaint all of her factual
allegations supporting her claim.
filed an Amended Complaint on July 31, 2019. DE 29. Plaintiff
did not replead her claim of intentional infliction of
emotional distress. Plaintiff rather raised new allegations
against Defendant of violations of three Florida criminal
statutes. Specifically, Plaintiff alleged criminal sexual
battery, in violation of Fla. Stat. § 794.011, criminal
child abuse, in violation of Fla. Stat. § 827.03, and
criminal abuse of a disabled adult, in violation of Fla.
Stat. § 825.02.
then filed the instant Motion to Dismiss the Amended
Complaint, which now is ripe for resolution. DE 31. The
Amended Complaint must be dismissed for lack of standing.
Plaintiff alleges that Defendant committed crimes under
Florida law, however she points to no authority that provides
her a private cause of action for those crimes. See
DE 29; DE 32. A plaintiff lacks standing to bring criminal
charges, as the government, not private citizens, prosecutes
crimes. Williams v. Univ. of Ala. Hosp. at
Birmingham, 353 Fed.Appx. 397, 398 (11th Cir. 2009)
(affirming a district court's dismissal of a pro
se complaint alleging criminal assault and bribery and
citing Linda R.S. v. Richard D., 410 U.S. 614, 619
Response to the instant Motion to Dismiss is titled as a
“Complaint” in addition to a Response.
See DE 32. The portion of the Response that might be
construed as a Complaint mirrors the Amended Complaint,
although the Court notes that the portion is not a
word-for-word repetition of the Amended Complaint. Plaintiff
does not purport to have obtained Defendant's consent to
further amend her Complaint, and she has not obtained this
Court's leave to file an additional Complaint.
See Fed. R. Civ. P. 15(a) (providing requirements
for amending pleadings). Plaintiff submitted the filing at DE
32 well past the June 11, 2019 deadline to amend pleadings,
and the Court previously gave her an opportunity to amend her
Complaint, ordering her to include all of her factual
allegations in the Amended Complaint. See DE 6; DE
28; see also Bryant v. Dupree, 252 F.3d 1161, 1163
(11th Cir. 2001) (explaining that a plaintiff generally must
be given at least one opportunity to amend a complaint when a
more carefully drafted complaint might state a claim for
relief). Moreover, the filing at DE 32, like the Amended
Complaint, raises allegations of violations of Florida
criminal statutes. To the extent that this filing may be
construed as a Second Amended Complaint, it is subject to
dismissal with prejudice for the same reasons as is the
those reasons, it is ORDERED AND ADJUDGED as
1. Defendant's Motion to Dismiss the Amended Complaint
[DE 31] is GRANTED.
2. Plaintiffs Amended Complaint [DE 29] is DISMISSED
3. The Clerk of Court is instructed to CLOSE THIS
CASE. All pending deadlines are
TERMINATED, all hearings are
CANCELLED, and all pending motions are
DENIED AS MOOTDONE and
ORDERED in Chambers, West Palm ...