Clark v. Doggett

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

NOEL D. CLARK, JR.,

Plaintiff,

v. Case No: 2:21-cv-588-JES-NPM

LINDA DOGGETT, DEENA T.

VOYDATCH, MORGAN VOYDATCH,

SHANIA SHERIDAN, RYAN

SHIRLEY, LEE COUNTY

DEVELOPMENT SERVICES,

Defendants.

OPINION AND ORDER

This matter comes before the Court on the following two

motions to dismiss: (1) Defendant Linda Doggett’s (Doggett) Motion

to Dismiss (Doc. #5), to which pro se Plaintiff Noel D. Clark, Jr.

(Clark or Plaintiff) filed a Response (Doc. #16); and (2) Defendant

1

Lee County Development Services’ (Lee County) Motion to Dismiss

(Doc. #9), to which Clark filed Objections (Doc. #31). Lee County

and Doggett both seek dismissal of Clark’s Complaint pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

1

As Lee County notes, “Lee County Development Services” is

improperly named in this action and “Lee County” is the proper

party. See Fla. Stat. § 125.15; Strickland v. Pinellas Cty., 261

So. 3d 700, 701 n.1 (Fla. 2d DCA 2018) (the “County is the proper

entity”).

The Court finds that the Complaint (Doc. # 1) fails to contain

a plausible federal claim and fails to allege a proper basis for

diversity of citizenship. There is no other basis for a federal

court to exercise jurisdiction over the case, and the Court will,

in the exercise of its discretion, decline to entertain the state-

court claims. The Complaint is therefore dismissed without

prejudice.

I.

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.” 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 for failure to

state a claim upon which relief can be granted, 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.

Berzaín, 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) (quotations and 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.

In considering a motion to dismiss under Rule 12(b)(6), a

court generally may not look to matters outside the pleadings.

Fed. R. Civ. P. 12(d). A district court may consider the

allegations in the complaint, and documents attached as an exhibit

to the complaint. Fed. R. Civ. P. 10(c). A district court may

also consider: a document not attached to the complaint, but which

is incorporated by reference in the complaint, Day v. Taylor, 400

F.3d 1272, 1276 (11th Cir. 2005); a document attached to a motion

to dismiss if (1) the document is central to the plaintiff’s claim,

and (2) its authenticity is not challenged, Day, 400 F.3d at 1276;

SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337

(11th Cir. 2010); and a judicially noticed fact. Bryant v. Avado

Brands, Inc., 187 F.3d 1271, 1278-81 (11th Cir. 1999); Lozman v.

City of Riviera Beach, Fla., 713 F.3d 1066, 1075 n.9 (11th Cir.

2013); U.S. ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 811

(11th Cir. 2015). Otherwise, consideration of extrinsic evidence

requires the Court to convert a motion to dismiss into a motion

for summary judgment. Fed. R. Civ. P. 12(d).

Pro se pleadings are held to a less stringent standard than

one drafted by an attorney and are liberally construed. 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.

II.

The following facts are taken from the Complaint (Doc. #1)

and the documents which the Court may properly consider in

determining a motion to dismiss (Doc. #9 Exhibits). This civil

action relates to Clark’s purchase of real property located at

7886/7890 Marx Drive in North Fort Myers, Florida, (the Property)

at a Lee County tax deed sale on December 15, 2020. According to

Clark, the Property had been used as a location to buy and sell

various types of drugs for at least four years prior to his

purchase of the Property. (Doc. #1, ¶¶ 11-12.) The Property was

the subject of code violations and health violations. (Id. at ¶¶

13, 14.) Defendants Deena and Morgan Voydatch (the Voydatchs),

and Defendant Shania Sheridan (Sheridan) owned the Property at

that time. (Id. at ¶ 11.)

On July 18, 2019, a Lee County Hearing Examiner issued an

Order Imposing a Fine after it had been established that the owners

of the Property had not cured the violation (nuisance accumulation

of two broken and inoperable campers on the property) found at the

Property. (Doc. #9, Ex. 1.) The Order Imposing a Fine ordered

the interested property owners to pay a $25.00 fine per day until

the violations were cured. (Id.) The Order Imposing a Fine was

filed in the public records of Lee County on August 14, 2019, and

2

thereby became a lien on the Property.

On September 17, 2020, a Tax Collector’s Certification was

filed stating that the holder of a tax sale certificate for the

Property had made a written application for a tax deed with the

Lee County Tax Collector. (Doc. #9, Ex. 2, pp. 20, 42.) The

Voydatchs and Sheridan were sent notices of the application for

the tax deed. (Id., Ex. 2, p. 23.)

2 A certified copy of a code enforcement board order imposing

a fine may be recorded in the public records of the county and

subsequently such order shall constitute a lien against the land

upon which the violation exists and upon any other real property

or personal property which is owned by the violator. Fla. Stat.

§ 162.09(3).

Clark asserts that prior to the December 15, 2020 tax deed

sale he reached an agreement with the Voydatchs concerning the

Property. Clark would pay the outstanding code enforcement amounts

in exchange for the Voydatchs executing quitclaim deeds to Clark

and peacefully moving off the premises. (Doc. #1, ¶¶ 16-18.)

Clark suggests that this agreement with the Voydatchs also applied

to Sheridan. (Id., ¶¶ 16, 23.) The Voydatchs did execute

quitclaim deeds to Clark, but refused to move off the Property and

stripped the Property for scrap metal after he purchased it. (Id.,

¶ 16.)

On December 15, 2020, Clark purchased the tax deed for the

Property at a tax deed sale for $33,718.50. (Doc. #9, Ex. 4, p.

45; Doc. #1, ¶ 19.) After the purchase, Lee County recognized

Clark as the new owner. (Doc. #9, Ex. 3, p. 44.)

On January 15, 2021, another Order Imposing Fine (the 2021

Fine Order) was issued against the Property, describing new code

violations, and requiring a $50.00 per day fine until the

violations were cured. (Id., Ex. 3, p. 44.) The 2021 Fine Order

recognized Clark’s purchase of the Subject Property: “Since the

date of Order Finding Violation, there has been a change in

property ownership. The current property owner is CLARK NOEL D.

JR.” (Id., p. 44.) The 2021 Fine Order was sent to the Voydatchs,

Sheridan, and Clark. (Id.) On February 4, 2021 the Fine Order

was recorded in the public records of Lee County and became a lien

3

on the Property. (Id.)

Clark asserts there were overages of $26,222.32 from the tax

sale and, by virtue of quitclaim deeds from the Voydatchs, he is

entitled to all the overage. (Doc. #1, ¶¶ 17, 19.) Clark alleges

that the Lee County Clerk of Courts has failed to remit the overage

from the tax deed sale to him. (Id., ¶ 19.)

The Complaint asserts six “counts” consisting of one federal

claim and five state-law claims: (1) constitutional due process

violation against Lee County; (2) overage owed in the amount of

$26,222.32 against Doggett, Shirley, the Voydatchs, and Sheridan;

(3) conspiracy against the Voydatchs and Shirley; (4) fraud

against the Voydatchs and Shirley; (5) damages against Sheridan;

and (6) damages against the Voydatchs. (Id.)

III.

The Court first addresses Count 1, Clark’s sole federal claim,

which asserts a violation of due process against Lee County. For

the reasons set forth below, the Court finds that Count 1 does not

state a plausible federal due process violation claim.

Clark alleges that Lee County knew about his agreement with

the Voydatchs prior to the tax deed sale, he attempted to contact

Lee County about curing the violations and the continued fines,

3

See n.2, supra.

and Lee County refused to converse with him, in violation of his

due process rights. (Doc. #1, ¶ 20; Doc. #31, pp. 1, 3-4.) Clark

states that Lee County failed to provide him with due process

because he tried multiple times to reach out to Lee County by

telephone and letter, and Lee County refused to acknowledge him or

respond to his communications. (Id.)

As an initial matter, the Court does not share Lee County’s

concern about Clark’s repeated references to “Florida law” in

connection with his due process claim. The Complaint clearly

states that the claim is asserted under the due process provision

of the U.S. Constitution (Doc. #1, ¶ 20), and this allegation is

incorporated into Count 1. (Id. at ¶ 25.) Not only is a pro se

litigant entitled to greater leeway in his pleading, but the

Constitution and federal laws passed pursuant to it “are as much

laws in the States as laws passed by the state legislature.”

Howlett By & Through Howlett v. Rose, 496 U.S. 356, 367 (1990).

The Fourteenth Amendment to the United States Constitution

guarantees 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). It is unclear from Clark’s

Complaint whether he asserts a substantive or procedural due

process claim, so the Court discusses both.

(1) Substantive Due Process

“The substantive component of the Due Process Clause protects

those rights that are ‘fundamental,’ that is, rights that are

‘implicit in the concept of ordered liberty.’” McKinney v. Pate,

20 F.3d 1550, 1556 (11th Cir. 1994) (en banc) (quoting Palko v.

Connecticut, 302 U.S. 319, 325 (1937)). “[F]undamental rights in

the constitutional sense do not include ‘state-created rights,’”

so state-created rights are generally not protected by substantive

due process. Hillcrest Prop., LLP v. Pasco County, 915 F.3d 1292,

1297–99 (11th Cir. 2019). “Garden-variety property rights do not

meet this standard and thus, as a general proposition, their

deprivation does not in and of itself concern the concept of

ordered liberty.” PBT Real Estate, LLC v. Town of Palm Beach, 988

F.3d 1274, 1283–84 (11th Cir. 2021) (citations omitted). An

exception to this general proposition exists when an individual’s

state-created rights are infringed upon by an arbitrary and

irrational “legislative act;” however, non-legislative, “executive

acts” concerning state-created rights cannot support a substantive

due process claim, even if the plaintiff alleges that the

government acted arbitrarily and irrationally. Lewis v. Brown,

409 F.3d 1271, 1272–73 (11th Cir. 2005) (citing Greenbriar Village,

L.L.C., 345 F.3d at 1263; then citing McKinney, 20 F.3d at 1559).

As Clark acknowledges, his interest in the Property was a

state-created property right. (Doc. #31, p. 2.) The fines imposed

by the 2021 Fine Order were the result of an executive act

involving state-created real property rights. As such, the

Complaint fails to state a substantive due process violation

against Lee County, and this portion of Count 1 is dismissed.

(2) Procedural Due Process

“Generally, due process requires notice and the opportunity

to be heard.” Lindbloom v. Manatee County, 808 Fed. App’x 745,

750 (citing Grayden v. Rhodes, 345 F.3d 1225, 1236 (11th Cir.

2003)). 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). “[A] violation of procedural due process does not

‘become complete unless and until the state refuses to provide due

process.’” Club Madonna, Inc. v. City of Miami Beach, 924 F.3d

1370, 1378 (11th Cir. 2019) (quoting McKinney, 20 F.3d at 1562).

Clark acknowledged that he received the 2021 Fine Order as

the then-current property owner. (Doc. #1, ¶20; Doc. #31, pp. 3.)

The 2021 Fine Order stated that it “may be appealed to the Circuit

Court if filed within 30 days of the date of the Order.” (Doc.

#9, p. 44.) The 2021 Fine Order was the result of an administrative

act by Lee County Code Enforcement. (Doc. #9, p. 44.) Florida

law established that there was an adequate state process available

to Clark. In Florida, an aggrieved party may appeal a final

administrative order of an enforcement board to the circuit court.

Fla. Sta. § 162.11. “An appeal of a final administrative order to

the Florida State Circuit Court satisfies due process because the

circuit court has the power to remedy any procedural defects and

cure due process violations.” Lindbloom, 808 Fed. App’x at 750

(citing Club Madonna, 924 F.3d at 1379). See also Cotton v.

Jackson, 216 F.3d 1328, 1330-31 (11th Cir. 2000) (“certiorari [to

the state courts] is generally an adequate state remedy”).

It makes no difference whether Clark availed himself of these

remedies. See 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 appeal process] does not constitute a sign

of their inadequacy.”). Lee County’s failure to respond to a phone

call or letter does not rise to the level of a constitutional

violation. This portion of Count 1 is also dismissed.

IV.

Clark’s remaining “counts” are state law claims for damages

arising from the alleged overage. The allegations in the Complaint

do not allege a complete diversity of citizenship or the minimal

jurisdictional about for diversity jurisdiction. Pursuant to 28

U.S.C. § 1367(c)(3), the Court will exercise its discretion and

decline to exercise supplemental jurisdiction over the state

claims. Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th

Cir. 2004) (encouraging district courts to dismiss state claims

where all claims which provided original jurisdiction have been

dismissed).

ORDERED:

1. Lee County’s Motion to Dismiss the Complaint (Doc. #9)

is GRANTED to the extent that Count I is dismissed

without prejudice for failure to state a claim. The

remaining claims, Counts II through VI, are dismissed

without prejudice pursuant to 28 U.S.C. § 1367(c)(3).

2. Doggett’s Motion to Dismiss (Doc. #5) is GRANTED to the

extent the Court declines to exercise jurisdiction over

the remaining claims. The remaining claims, Counts II

through VI, are dismissed without prejudice pursuant to

28 U.S.C. § 1367(c)(3).

3. Because the Court lacks subject matter jurisdiction over

the claims against the other defendants, the Complaint

is dismissed without prejudice in its entirety.

4. The Clerk shall enter judgment, terminate all deadlines

and pending motions, and close this case.

DONE and ORDERED at Fort Myers, Florida, this 3rd day

of January, 2022.

J E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record

Noel Clark (address on file)

Shania Sheridan (address on file)