# LeBlanc v. Town of Fort Myers Beach

> District Court, M.D. Florida · August 21, 2019

URL: https://www.frixlaw.com/law-library/cases/10103509

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 21, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10103509. Public record. Not legal advice.