LeBlanc v. Town of Fort Myers Beach

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MARTIN G LEBLANC,

Plaintiff,

v. Case No: 2:19-cv-235-FtM-99NPM

TOWN OF FORT MYERS BEACH and

MOLLY JACOBS,

Defendants.

OPINION AND ORDER

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.

I.

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.

II.

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.

III.

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 F. App’x

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 conscience’ or interferes with rights ‘implicit

in the concept of ordered liberty’ - in other words, only if it

affects individual rights guaranteed explicitly or implicitly by

the Constitution itself.” Dacosta v. Nwachukwa, 304 F.3d 1045,

1048 (11th Cir. 2002) (citation omitted).

Here, plaintiff makes the vague claim that defendants’ code

enforcement actions have caused him the loss of the use of his

property because a lien was placed on the property and he was

unable to refinance his home in order to make his home wheelchair

accessible. However, the ability to refinance your home in order

to convert the property for wheelchair use is not a fundamental

right protected by the due process clause. In addition, plaintiff

has not alleged that defendants committed any intentional tort

that shocks the conscience that would rise to the level of a

substantive due process violation.

B. Procedural Due Process

“In this circuit, a § 1983 claim alleging a denial of

procedural due process requires proof of three elements: (1) a

deprivation of a constitutionally-protected liberty or property

interest; (2) state action; and (3) constitutionally-inadequate

process.” Arrington v. Helms, 438 F.3d 1336, 1347 (11th Cir.

2006) (internal citation omitted). Even when the deprivation of

a property interest occurs, “only when the state refuses to provide

a process sufficient to remedy the procedural deprivation does a

constitutional violation actionable under section 1983 arise.”

Cotton v. Jackson, 216 F.3d 1328, 1330-31 (11th Cir. 2000) (quoting

McKinney, 20 F.3d at 1557). It is only the absence of adequate

procedures to remedy the property deprivation of a protected

property right that gives rise to a procedural due process claim.

Id. at 1331.

First, plaintiff has not identified a constitutionally

protected property interest which he was entitled to and that

defendants deprived him of. Assuming plaintiff has a protected

property right, to determine if a plaintiff has established a valid

procedural due process claim the court looks to whether the

available procedures were adequate. Cotton, 216 F.3d at 1331. As

the Eleventh Circuit observed in Cotton,

[t]his rule (that a section 1983 claim is not stated

unless inadequate state procedures exist to remedy an

alleged procedural deprivation) recognizes that the

state must have the opportunity to remedy the procedural

failings of its subdivisions and agencies in the

appropriate fora–agencies, review boards, and state

courts before being subjected to a claim alleging a

procedural due process violation.

Id. see also Reams, 561 F.3d at 1266 (citing Horton v. Bd. of Co.

Com’rs of Flagler Co., 202 F.3d 1297, 1300 (11th Cir. 2000) (no

federal procedural due process violation under McKinney if state

courts “generally would provide an adequate remedy for the

procedural deprivation the federal court plaintiff claims to have

suffered”)).

Plaintiff fails to allege that there were inadequate state

court remedies available to remedy his alleged procedural

violations. In Florida, an aggrieved party may appeal a final

administrative order of an enforcement board to the circuit court.

Fla. Sta. § 162.11. In this case, absent additional facts, it

appears that the ability to appeal to state court more than

satisfies the requirement that the state provide a remedy. See

Cotton, 216 F.3d at 1331 (“[C]ertiorari [to the state courts] is

generally an adequate state remedy.”). In addition, it makes no

difference whether plaintiff availed himself of available post-

deprivation remedies (which the Court is unaware of as the

Complaint is silent on this issue). As the Eleventh Circuit

explained:

The McKinney rule is not micro in its focus, but macro.

It does not look to the actual involvement of state

courts or whether they were asked to provide a remedy in

the specific case now before the federal court. Instead,

the McKinney rule looks to the existence of an

opportunity—to whether the state courts, if asked,

generally would provide an adequate remedy for the

procedural deprivation the federal court plaintiff

claims to have suffered. If state courts would, then

there is no federal procedural due process violation

regardless of whether the plaintiff has taken advantage

of the remedy or attempted to do so.

Horton, 202 F.3d at 1300; see also McKinney, 20 F.3d at 1565 (“The

fact that [the plaintiff] failed to avail himself of the full

procedures provided by state law [i.e. the post-termination

remedies] does not constitute a sign of their inadequacy.”).

C. Leave to Amend

The Court finds that LeBlanc has suffered no constitutional

infringement. However, because a party generally should be given

at least one opportunity to amend before the court dismisses a

complaint with prejudice, Bryan v. Dupree, 252 F.3d 1161, 1163

(11th Cir. 2001), the Court will provide plaintiff with a final

opportunity to file an amended complaint setting forth claims.

The Court will not grant leave to file any additional complaints

if the new pleading is insufficient.

The amended complaint must specify the actions of each

defendant individually without lumping defendants together as a

collective defendant taking a collective action. Pursuant to

Federal Rule of Civil Procedure 10, the allegations should be set

forth in separate numbered paragraphs, “each limited as far as

practicable to a single set of circumstances” Fed. R. Civ. P.

10(b). Further, each claim “founded on a separate transaction or

occurrence” must be stated in a separate “Count.” Id.

For additional resources and assistance, plaintiff may wish

to consult the “Proceeding Without a Lawyer” resources on filing

a pro se complaint that are provided on the Court’s website, at

http://www.flmd.uscourts.gov/pro_se/default.htm. The website has

tips, answers to frequently-asked questions, and sample forms.

There is also a link that, through a series of questions, may help

plaintiff generate the amended complaint.

Accordingly, it is hereby

ORDERED AND ADJUDGED:

Defendants’ Motions to Dismiss for Failure to State a Claim

(Docs. ##16, 17) are GRANTED and the Complaint (Doc. #1) is

dismissed without prejudice to filing an amended complaint by

October 14, 2019 in compliance with the directives above. The

failure to file an amended complaint will result in the close of

the case without further notice.

DONE and ORDERED at Fort Myers, Florida, this _ 2lst__ day of

August, 2019.

py LEY,

E. STEELE

3q IOR UNITED STATES DISTRICT JUDGE

Copies:

Plaintiff

Counsel of Record