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Mitchell v. City of Bartow

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

December 26, 2019

ELLIS STEVE MITCHELL, Plaintiff,
v.
CITY OF BARTOW, et al., Defendants.

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE.

         Suing under Section 1983, Ellis Steve Mitchell, appearing pro se, claims (Doc. 10) that the City of Bartow, the chief of police, the vice-mayor, and the city attorney deprived Mitchell of a constitutional right (1) by “cutting off” Mitchell during two city commission meetings and (2) by performing a criminal background check against Mitchell after the first meeting. The individual defendants (each sued in an individual capacity) and the City jointly move (Doc. 17) to dismiss Mitchell's amended[1] complaint for failure to state a claim.

         BACKGROUND

         In the amended complaint (Doc. 10), Mitchell alleges that once in January 2014 and twice in May 2014 Bartow's chief of police “unlawfully accessed” a law- enforcement computer to perform - for an unspecified reason - a “record/ warrant” check against Mitchell, a former police officer. (Doc. 10 at 4-5) Two months later, the vice-mayor allegedly “gaveled down” Mitchell during a city commission meeting. (Doc. 10 at 4) Two months after the meeting, the chief of police allegedly directed a detective to perform another “record/warrant” check against Mitchell. (Doc. 10 at 5) During another city commission meeting in October 2014, the vice-mayor again allegedly “gaveled down” Mitchell. (Doc. 10 at 4) No allegation describes what Mitchell said (or attempted to say) that spurred the vice-mayor to “gavel down” Mitchell during these meetings.

         After the October 2014 meeting, the vice-mayor and the chief of police allegedly “had a lengthy discussion” about Mitchell and e-mailed the city attorney “about the need to cut [Mitchell] off” during meetings of the city commission. (Doc. 10 at 4) Mitchell claims he has suffered “extreme emotional distress” resulting from the defendants' “conspir[ing] together to cut [Mitchell] off.” (Doc. 10 at 5)

         In an unauthorized “supplement” (Doc. 11) to the amended complaint, Mitchell purports both to add new allegations to the amended complaint and to assert an official-capacity claim against the city manager, the city commissioner, and two detectives. The supplement asserts in pertinent part that the chief of police performed the record check against Mitchell after the city manager asked about security at city meetings and that the chief of police requested the record check to humiliate Mitchell. (Doc. 11 at 4) However, according to Mitchell, the record check revealed no suggestion that Mitchell threatened the city or that Mitchell “was under investigation for any other reason, including a traffic stop.” (Doc. 11 at 4)

         DISCUSSION

         Mitchell argues that the amended complaint and the “supplement” plausibly show that the defendants have deprived Mitchell of a right secured by the First, Fourth, and Fourteenth Amendments. Moving to dismiss for failure to state a claim, the defendants argue primarily that the amended complaint (1) fails to allege facts showing that the defendants deprived Mitchell of a constitutional right, (2) asserts redundant official-capacity claims, (3) fails to allege facts showing that the alleged constitutional deprivation resulted from an act of the municipality, and (4) impermissibly demands punitive damages.

         Also, the defendants contend that an order resolving the motion to dismiss should disregard the allegations in the “supplement, ” which Mitchell filed unilaterally and in disregard of the procedure for amendment established by Rule 15, Federal Rules of Civil Procedure. Although the defendants correctly observe that Mitchell's supplement warrants no consideration, the allegations in the supplement - even if considered - cannot salvage the amended complaint.

         1. The alleged constitutional deprivation

         To state a claim under Rule 8, Federal Rules of Civil Procedure, a plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although Rule 8 does not require “detailed factual allegations, ” the plaintiff must allege facts sufficient to “nudge” the claim “across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         i. Mitchell alleges no plausible violation of the First Amendment

         Mitchell claims that by “gaveling down” Mitchell during two meetings of the city commission, the defendants deprived Mitchell of a right secured by the First Amendment. Although a city's “gaveling down” a person during a public meeting might in some instances violate the First Amendment, Mitchell alleges no facts plausibly suggesting that in this instance a violation of the First Amendment occurred. A city commission meeting is a “limited” public forum, that is, a “forum for certain groups of speakers or for the discussion of certain subjects.” Crowder v. Housing Auth. of City of Atlanta, 990 F.2d 586, 591 (11th Cir. 1993) (citing Perry Educ. Ass'n. v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 n.7, (1983)). A city can “restrict access to limited public for[ums][2] by content-neutral restrictions for the time, place, and manner of access . . . .” Crowder, 990 F.2d at 591. For example, a city can confine a meeting to a specified subject, can preclude extraneous - or require germane - discourse, can prohibit disruptive behavior, and can allot a stated time to a speaker. The First Amendment grants no license to divert, monopolize, disrupt, or truncate presentations received in a “limited public forum, ” such as a meeting of a city commission. A city always can, and sometimes must, for example, through a presiding officer's applying rules of procedure and decorum, reasonably limit a speaker's time and topic to enable the informed, effective, and orderly conduct of the public's business. Rowe v. City of Coca, Florida, 358 F.3d 800, 802-03 (11th Cir. 2004).

         Mitchell alleges no facts suggesting that in this instance the vice-mayor's “gaveling down” of Mitchell constitutes an impermissible restriction on a right secured to Mitchell by the First Amendment. Mitchell states few, if any, of the facts about the content of the speech that allegedly spurred the vice-mayor to “gavel down” Mitchell and few, if any, of the facts about the circumstances accompanying and causing the “gaveling down.” Mitchell asserts - without providing supporting facts - that the vice-mayor “gaveled down” Mitchell during a meeting and claims that this denies Mitchell a right secured by the First Amendment. Although alleging facts consistent with the City's liability, Mitchell “‘stops short of the line between possibility and plausibility of entitlement to relief.'” Ash ...


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