Mariani v. Nocco

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DEAN MARIANI,

Plaintiff,

v. Case No: 8:20-cv-2998-CEH-CPT

CHRISTOPHER NOCCO, JEFFREY

HARRINGTON, MICHAEL

FARRANTELLI, STACY JENKINS,

ED BECKMAN, CHRISTOPHER

NOCCO, JEFFREY HARRINGTON,

MICHAEL FARRANTELLI, STACY

JENKINS and ED BECKMAN,

Defendants.

___________________________________/

ORDER

This matter comes before the Court upon Defendants' Dispositive Motion to

Dismiss Plaintiff's Amended Complaint [Doc. 18], Plaintiff’s Response in Opposition

[Doc. 22], and the supplemental authority cited by Defendants [Docs. 25, 26, 27, 28].1

In the motion, Defendants state that the Amended Complaint is a shotgun pleading,

that the RICO claims fail to state a claim upon which relief may be granted, and that

the constitutional claims fail to state a claim upon which relief may be granted. The

Court, having considered the motion and being fully advised in the premises, will

GRANT Defendants' Dispositive Motion to Dismiss Plaintiff's Amended Complaint.

1 The supplemental authorities refer the Court to orders granting dismissal in other cases that

were involved in the Squitieri Litigation.

I. BACKGROUND2

Plaintiff, Dean Mariani, is a former employee of the Pasco County Sheriff’s

Office (PCSO). [Doc. 16 ¶ 7]. He was employed there from approximately July 1997

through June 2018 as a Lieutenant. Id. ¶ 24. Defendants were employees of the Pasco

County Sheriff’s Office at all times relevant to the claims raised in this action. Id. ¶¶ 8-

12. Christopher Nocco served as sheriff, Jeffrey Harrington served as a colonel,

Michael Farrantelli served as a captain, and Stacy Jenkins and Ed Beckman both

served as a major. Id. Plaintiff alleges that Defendants—in their individual capacities—

have engaged in a pattern and practice of “racketeering activity” in violation of the

Federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.

(“Federal RICO”), and Florida’s Racketeering Statute, Chapter 895 et seq. (Florida

“RICO”) Id. ¶¶ 13-14.

Defendants’ “criminal enterprise” involved targeting Plaintiff and others who

would not exhibit undying loyalty to all operational demands of the PCSO. Id. ¶¶ 15-

16. This included “clearly unlawful and unconstitutional treatment of various citizen

targets, regardless of there being no probable cause or lawful basis for the targeting of

said citizens, as well as any effort to identify and correct sexual harassment and other

unlawful operational characteristics.” Id. ¶ 16. In 2011, the PCSO implemented the

“Intelligence Led- Policing” law enforcement policies and procedures (the ILP

2 The following statement of facts is derived from Plaintiffs’ Amended Complaint [Doc. 1-5],

the allegations of which the Court must accept as true in ruling on the instant Motion to

Dismiss. See Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de Centro

Am., S.A. v. Latin Am. Agribusiness Dev. Corp. S.A., 711 F. 2d 989, 994 (11th Cir. 1983).

Program). Id. ¶ 17. The program is predicated on the belief that 6% of criminals

commit 60% of crimes and targets those deemed to be “prolific offenders.” Id. ¶¶ 17-

19. It further criticizes “bureaucratic processes” that are the fundamental

considerations of “probable cause” and the many other constitutional protections that

apply to all citizens in a free society. Id. ¶ 20. Any resistance to the unconstitutional

actions demanded by implementation of the ILP Program by Plaintiff would result in

the swift application of the various tools used by Defendants, including abuse,

intimidation, threatened or actual incarceration, extortion, defamation, and

permanent damage to Plaintiff’s ability to pursue alternative careers in law

enforcement. Id. ¶¶ 21-22.

When Plaintiff did not cooperate with Defendants in enforcing the

unconstitutional dimensions of the ILP Program against innocent citizens of Pasco

County, Defendants—through their criminal enterprise—retaliated against him with

baseless internal departmental investigations intended to ruin his career and prevent

him from gaining employment with any other law enforcement agency. Id. ¶ 23. He

was written up by Major Jenkins, Captain Farrantelli, and Major Beckman when he

forwarded a memo to his captain regarding an inmate grievance that a deputy had

punched him. Id. ¶¶ 25-27. He was also written up because as a lieutenant he did not

issue a single personnel observation report to any of his subordinates. Id. ¶ 29. Sheriff

Nocco, Colonel Harrington, Major Jenkins, and Captain Faranetlli collectively

decided to demote Plaintiff from Lieutenant to Deputy. Id. ¶ 28. Plaintiff was forced

to resign by Defendants in approximately 2018, when they extorted him with the threat

of taking his vacation and sick pay away and firing him if he refused to resign. Id. ¶ 30.

On June 20, 2019, Plaintiff joined a lawsuit along with nineteen other plaintiffs,

that named forty-five defendants, including Sheriff Christopher Nocco and other top

officials at the PCSO, which alleged that defendants engaged in a pattern of

racketeering activity in violation of federal and Florida law. See Squitieri v. Nocco et al,

Case No. 8:19-cv-00906-CEH-AAS, Doc. 7 (“Squitieri Litigation”). That lawsuit was

initially filed on April 16, 2019 by Christopher J. Squitieri, John Horning, and

Anthony Pearn, and assigned to the Undersigned. Squitieri Litigation, Doc. 1. On

August 7, 2019, Plaintiffs filed a lengthy second amended complaint re-asserting their

claim under the federal civil RICO Act and raising a new claim under Chapter 895,

Florida Statutes, an inapplicable criminal RICO statute. Id., Doc. 121. Defendants

moved to dismiss the second amended complaint less than a week later. Id., Doc. 131.

During a hearing on that motion to dismiss, the Undersigned explained that the second

amended complaint was “so poorly drafted” that it could not be assessed on the merits.

Id., Doc. 171 at 6:11-14. The Undersigned also explained step-by-step the deficiencies

in Plaintiffs’ pleading, orally granted-in-part the motion to dismiss, and directed

Plaintiffs to file a third amended complaint that complied with the Federal Rules of

Civil Procedure. Id., Doc. 161. On April 1, 2020, Plaintiffs filed the third amended

complaint. Id., Doc. 169. Defendants moved to dismiss it on April 13, 2020. Id., Doc.

170. After entering an order to show cause and considering Plaintiffs’ response, the

Undersigned severed the various claims and ordered that they be pursued in separate

actions. Id., Doc. 189.

Plaintiff then filed this action on December 16, 2020. [Doc. 1]. He amended

his complaint on February 19, 2021. [Doc. 16]. The Amended Complaint alleges a

claim for violations of federal and state racketeering statutes (Count I) and an

alternative claim for constitutional violations committed by Defendants in their official

capacities (Count II). Plaintiff presents numerous allegations in Count I. Id. ¶¶ 32-36.

There, he alleges that Defendants—including Sheriff Nocco and Colonel Harrington

through their instruction and guidance—violated the mail and wire fraud statutes as

all documents and notices in relation to this investigation were transmitted either by

mail or electronic means. Id. ¶ 33. Plaintiff also alleges that Defendants engaged in

racketeering activity when threatening him to resign or face dismissal in relation to the

fraudulent and unjust complaints filed against him. Id. ¶ 34. He further alleges that

Defendants conspired to violate the theft or embezzlement from employee benefit plan

provision of the federal and Florida RICO statutes. Id. ¶¶ 35-36.

In Count II, the alternative claim, Plaintiff alleges that to the extent Defendants

carried out their acts and practices in their official capacities, they were being

performed under color of state law and constitute state action. Id. ¶ 38. He further

alleges that Defendants punished him for exercising his First Amendment rights and

that Sheriff Nocco forced him to resign for the violations falsely alleged against him,

and in doing so, took away a property right protected by the Constitution. Id. ¶¶ 40-

41. The acts of Defendants allegedly abridged and restrained Plaintiff’s rights to free

speech as guaranteed by the Florida and United States Constitution; constitute an

impermissible "chilling effect" on constitutionally protected speech and expression;

denied Plaintiff equal protection of the law; and constitute an unlawful and

unauthorized taking of Plaintiff’s job via forced resignation. Id. ¶ 41.

Defendants have moved to dismiss the Amended Complaint. [Doc. 18]. They

first argue that the complaint is a shotgun pleading as it is replete with “conclusory,

vague, and immaterial facts not connected to any particular cause of action” and

otherwise fails to advise Defendants of the claims asserted against them. Id. at pp. 4-7.

They also argue that further opportunities to replead are not required or warranted as

Plaintiff has been afforded two opportunities to do so. Id. at p. 7. Next, Defendants

present several reasons why the civil RICO claim fails. Id. at pp. 7-20. They argue that

there is no private right of action under Florida’s RICO statute; that Plaintiff lacks

standing to pursue a RICO claim as the complaint fails to allege an injury, and

termination of employment and associated lost wages is not a cognizable injury; that

Plaintiff fails to plausibly allege that Defendants engaged in racketeering activity; and

that they are entitled to qualified immunity. Id. at pp. 12-20. Lastly, Defendants argue

that Count II, the constitutional claim fails because it is redundant; does not allege

how Plaintiff’s constitutional rights were infringed/implicated by Defendants’ alleged

conduct; the Fifth Amendment only protects against infringement by federal

government actors; and fails to allege that his First Amendment rights were infringed

by enforcement of a policy or custom of the Sheriff. Id. at pp. 21-22.

In response, Plaintiff contends that the complaint is not a shotgun pleading as

it establishes specific and detailed allegations in each count and places each Defendant

on notice of their violations. [Doc. 22 at p. 3]. He further contends that he is entitled

to injunctive relief pursuant to the Florida RICO statute to correct the false internal

reports. Id. at pp. 3-4. As to his standing, Plaintiff contends that his injuries to

property—loss of his job, wages, retirement pay—are a direct cause of Defendants’

violations of his rights through “predicate acts” and caused by Defendants’ conspiracy

to conceal and cover up these injuries by forcing him to resign, which was just one

tactic used to harass and intimidate him. Id. at pp. 5-6. Plaintiff also addresses the

sufficiency of his allegations as to the civil RICO claim, contending that he has

established the required elements. Id. at pp. 6-12. Next, he contends that Defendants

are not entitled to qualified immunity as there is no question that Defendants knew

their conduct was unlawful because they were law enforcement officers violating the

same federal and state criminal statutes that criminal defendants are arrested,

convicted, and sent to federal and state prison for violating every day. Id. at pp. 12-13.

Lastly, Plaintiff contends that there is no basis for dismissal of the constitutional claim

and that the Fifth Amendment claim brought under the banner of the Fourteenth

Amendment is constitutionally proper when the Defendants are state actors. Id. at p.

13.

II. LEGAL STANDARD

On a motion to dismiss for failure to state a claim on which relief can be granted

pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, the Court accepts as true

all the allegations in the complaint and construes them in the light most favorable to

the plaintiff. Michel v. NYP Holdings, Inc., 816 F.3d 686, 694 (11th Cir. 2016). However,

legal conclusions “are not entitled to the assumption of truth” and “conclusory

allegations, unwarranted factual deductions or legal conclusions masquerading as facts

will not prevent dismissal.” McArdle v. City of Ocala, 418 F. Supp. 3d 1004, 1006 (M.D.

Fla. 2019) (first quoting Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009), then quoting Davila

v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003)). To survive a motion to

dismiss, the complaint must contain sufficient factual matter, accepted as true, to

“state a claim to relief that is plausible on its face.” Simpson v. Sanderson Farms, Inc.,

744 F.3d 702, 708 (11th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). This standard is

satisfied when the plaintiff pleads enough factual content to allow the court “to draw

the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (quoting Iqbal, 556 U.S. at 678). By contrast, dismissal is appropriate

when “no construction of the factual allegations will support the cause of action.”

Glover v. Liggett Group, Inc., 459 F.3d 1305, 1308 (11th Cir. 2006) (quoting Marshall Cty.

Bd. Of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993)).

Additionally, Rule 9(b) places more stringent pleading requirements on claims

alleging fraud. Fed. R. Civ. P. 9(b). “[U]nder Rule 9(b) allegations of fraud must

include facts as to time, place, and substance of the defendant’s alleged fraud.” United

States ex rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1308 (11th Cir. 2002)

(citation and internal quotations omitted). A Plaintiff is thereby required to set forth

“the details of the defendants' allegedly fraudulent acts, when they occurred, and who

engaged in them.” Hopper v. Solvay Pharm., Inc., 588 F.3d 1318, 1324 (11th Cir.

2009) (internal quotation marks omitted) (citing Clausen, 290 F.3d at 1310). Failure to

satisfy the particularity requirement under Rule 9(b) amounts to failure to state a claim

under Rule 12(b)(6). See, e.g., Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir.

2005).

III. DISCUSSION

A. Shotgun Pleading

Defendants first argue that the Amended Complaint is a shotgun pleading. A

shotgun pleading is any pleading which “fail[s] to one degree or another . . . to give

the defendants adequate notice of the claims against them and the grounds upon which

each claim rests.” Weiland v. Palm Beach Cnty Sheriff’s Office, 792 F. 3d 1313, 1323 (11th

Cir. 2015). The Eleventh Circuit has identified four general types of shotgun pleadings.

Id. at 1322–23. They include: “(1) those in which ‘each count adopts the allegations of

all preceding counts;’ (2) those that do not re-allege all preceding counts but are ‘replete

with conclusory, vague, and immaterial facts not obviously connected to any

particular cause of action’; (3) those that do not separate each cause of action or claim

for relief into a different count; and (4) those that assert multiple claims

against multiple defendants without specifying which applies to which.” Yeyille v.

Miami Dade Cty. Pub. Sch., 643 F. App'x 882, 884 (11th Cir. 2016) (citing Weiland, 792

F.3d at 1321–23). Ultimately, “[t]he unifying characteristic of all types of shotgun

pleadings is that they fail to one degree or another, and in one way or another, to give

the defendants adequate notice of the claims against them and the grounds upon which

each claim rests.” Weiland, 792 F.3d at 1323; see also Lampkin-Asam v. Volusia Cnty. Sch.

Bd., 261 F. App’x 274, 277 (11th Cir. 2008) (“A complaint that fails to articulate claims

with sufficient clarity to allow the defendant to frame a responsive pleading constitutes

a ‘shotgun pleading.’”). When faced with a shotgun pleading, a court should strike the

complaint and instruct the plaintiff to file a more definite statement. See Davis v. Coca-

Cola Bottling Co. Consol., 516 F.3d 955, 984 (11th Cir. 2008) (collecting cases), abrogated

on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Plaintiff’s Amended Complaint is a shotgun pleading. For one, it is filled with

conclusory allegations. As an example, Plaintiff alleges that Defendants have

“engaged in a pattern and practice” of racketeering activity through tampering with a

witness, victim, or an informant as well as retaliating against a witness, victim, or an

informant. [Doc. 16 ¶ 13]. However, there are no factual allegations supporting these

conclusory allegations. Second, Plaintiff fails to separate each claim for relief into a

different count. Plaintiff lumps together multiple claims in a single count. To illustrate

this, Count I alleges federal RICO violations premised on mail fraud, wire fraud, and

extortion. Id. ¶¶ 33-34. It goes on to assert a RICO violation for theft or embezzlement

from employee benefit plan in violation of both federal and Florida law. Id. ¶¶ 34-35.

Plaintiff also seeks relief pursuant to both federal, First and Fifth Amendments, and

Florida law in Count II. Id. ¶¶ 39, 41(a), 41(d). This is an improper form for seeking

relief. A properly drafted pleading “will present each claim for relief in a separate

count.” Marlborough Holdings Grp., Ltd. V. Azimut-Benetti, Spa, Platinum Yacht Collection

No. Two, Inc., 505 F. App’x 899, 907 (11th Cir. 2013) (quoting Anderson v. Dist. Bd. Of

Trs. Of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)). As such, the Amended

Complaint is subject to dismissal as a shotgun pleading.

B. Failure to State a Claim

Defendants have presented additional grounds for dismissal of the Amended

Complaint. These relate to whether a private right of action exists for a particular

claim, whether Plaintiff has standing, whether the claims are sufficient, as well as

whether qualified immunity applies.

i. No Private Right of Action For Damages Under Florida’s

Criminal RICO Statute

“The Florida criminal RICO statute allows a private plaintiff to bring a civil suit

for equitable relief only.” Johnson Enterprises of Jacksonville, Inc. v. FPL Grp., Inc., 162

F.3d 1290, 1302 n.18 (11th Cir. 1998) (citing Fla. Stat. ch. 895.05(6) (1997)).

Defendants argue that as a former employee, Plaintiff does not have standing to pursue

injunctive relief. [Doc. 18 at p. 8]. In response, Plaintiff contends that the injunctive

relief requested is the correction of the false internal affairs reports that continue to

damage his reputation and ability to find a job in law enforcement. [Doc. 22 at pp. 3-

4]. While Plaintiff alleges that he was written up for two corrective investigative

reports, the Amended Complaint does not include a request for injunctive relief. In

fact, both counts seek monetary relief only. As such, the Amended Complaint is subject

to dismissal as to the Florida RICO statute.3

ii. No Standing to Pursue Civil RICO claim

Defendants argue that the Amended Complaint fails to identify Plaintiff’s

asserted injury, which must be shown in order to establish standing. [Doc. 18 at pp. 9-

10]. They further argue that the termination of one’s employment relationship and

associated loss wages is not a cognizable RICO injury. Id. at p. 10. Additionally, they

argue that Plaintiff has not alleged a cognizable injury as a result of a RICO violation.

Id. at pp. 10-11. “The standing provision of RICO provides that ‘[a]ny person injured

in his business or property by reason of a violation of section 1962 of this chapter may

sue....’ ” Bivens Gardens Off. Bldg., Inc. v. Barnett Banks of Fla., Inc., 140 F.3d 898, 906

(11th Cir. 1998) (citing 18 U.S.C. § 1964(c)). “[P]laintiffs lack standing to bring

a RICO claim unless their injuries were proximately caused by the RICO violation.”

Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1349 (11th Cir. 2016) (citing Bivens, 140 F.3d

at 906). See also Liquidation Comm'n of Banco Intercontinental, S.A. v. Renta, 530 F.3d

1339, 1350 (11th Cir. 2008) (“RICO standing is really just a heightened proximate

causation standard[.]”).

3 Defendants argue that Plaintiff, as a former employee, does not have standing to pursue

injunctive relief. They cite Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 364 (2011), and note

that in that case, the Supreme Court acknowledged that plaintiffs no longer employed by the

defendant “lack[ed] standing to seek injunctive or declaratory relief against its employment

practices.” While the Amended Complaint raises issues as to Defendant’s policy and

practices, Plaintiff’s response is that injunctive relief is needed to remedy false reports that

continue to harm him. But Plaintiff does not seek injunctive relief in the Amended Complaint.

Plaintiff points to allegations regarding his termination, vacation and sick pay,

and harm to his career to support an injury proximately caused by the RICO violation.

[Doc. 22 at pp. 4-6; Doc. 16 ¶¶ 23, 30]. However, Plaintiff insufficiently alleges that

these injuries occurred by reason of the RICO violation, as opposed to his decision to

resign rather than be fired. As such, Plaintiff has not alleged a cognizable RICO injury

as a result of a predicate act, as defined in the federal RICO Act. Even if Plaintiff can

establish standing, as discussed below, Counts I and II of the Amended Complaint fail

to state a claim upon which relief may be granted.

iii. Plaintiff Fails to State a Prima Facie Federal Civil RICO Claim

In Count I, Plaintiff asserts a private action against Defendants under the federal

RICO Act, which provides a private right of action for treble damages to “[a]ny person

injured in his business or property by reason of a violation” of the Act’s criminal

prohibitions. 18 U.S.C. § 1964(c); Bridge v. Phoenix Bond & Indem. Co. 553 U.S. 639,

641. As the Eleventh Circuit recently explained:

A private plaintiff suing under the civil provisions

of RICO must plausibly allege six elements: that the

defendants (1) operated or managed (2) an enterprise (3)

through a pattern (4) of racketeering activity that included

at least two predicate acts of racketeering, which (5) caused

(6) injury to the business or property of the plaintiff.

Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020) (citing Ray, 836 F.3d at

1348). A complaint will be dismissed if it fails to plead any one of these elements. Id.

Defendants next argue that Plaintiff fails to plead the requisite elements of a RICO

claim. [Doc. 18 at p. 12]. They contend that the Amended Complaint is devoid of any

allegations that would establish two of the predicate acts—mail fraud, wire fraud,

extortion, and embezzlement from an employee benefit plan;4 is devoid of any

allegations regarding a pattern and practice of racketeering activity; and alleges actions

taken within the course and scope of Defendant’s employment with the PSCO. [Doc.

18 at p. 12-20. The Court agrees.

a. Mail Fraud and Wire Fraud—18 U.S.C. §§ 1341 and 1343

The predicate acts of mail fraud and wire fraud have not been pleaded with

particularity as required by Rule 9(b). “Civil RICO claims, which are essentially a

certain breed of fraud claims, must be pled with an increased level of specificity.”

Ambrosia Coal & Const. Co. v. Pages Morales, 482 F.3d 1309, 1316 (11th Cir. 2007);

Cisneros, 972 F.3d at 1216 (applying Rule 9(b) to mail and wire fraud).

A plaintiff must prove the following elements to establish

liability under the federal mail and wire fraud statutes: (1)

that defendants knowingly devised or participated in a

scheme to defraud plaintiffs, (2) that they did so willingly

with an intent to defraud, and (3) that the defendants used

the U.S. mails or the interstate wires for the purpose of

executing the scheme.

Langford v. Rite Aid of Alabama, Inc., 231 F.3d 1308, 1312 (11th Cir. 2000). To satisfy

the heightened pleading standard, such claims “must allege: (1) the precise statements,

documents, or misrepresentations made; (2) the time and place of and person

4 Plaintiff also generally alleges, without more facts, that Defendants engaged in racketeering

activity through witness tampering in violation of 18 U.S.C. § 1512(b) and retaliation against

a witness, victim, or an informant, in violation of 18 U.S.C. §1513(e). Defendant has not

sought dismissal of these purported predicate acts, but the Court notes that the Amended

Complaint pleads insufficient facts as to these predicate acts.

responsible for the statement; (3) the content and manner in which the statements

misled the Plaintiffs; and (4) what the Defendants gained by the alleged fraud.”

Ambrosia Coal & Const. Co, 482 F.3d at 1316–17.

There is no such specificity in the Amended Complaint. Importantly, there is no

allegation as to why the internal departmental investigations are baseless or any detail

as to the corrective investigative reports. There is also no detail as to when the alleged

acts occurred. As a result, Plaintiff has not sufficiently alleged that Defendants engaged

in mail fraud or wire fraud.

b. Extortion—18 U.S.C. § 1961(1)(A)

“[I]n order for a state extortion offense to qualify as a predicate act under the

federal RICO statute, the conduct must be capable of being generically classified as

extortionate: that is, ‘obtaining something of value from another with his consent

induced by the wrongful use of force, fear or threats.’ ” Raney v. Allstate Ins. Co., 370

F.3d 1086, 1088 (11th Cir. 2004).5 The parties agree that under Florida law, extortion

includes malicious threats to: (1) accuse another of a crime or offense; (2) threaten

5 The complaint also alleges “racketeering activity” under 18 U.S.C. § 1961(1) including

extortion. [Doc. 16 ¶ 36]. The Court notes that § 1961(1) (B) states that racketeering activity

means any act which is indictable under any of the following provisions of Title 18, United

States Code, including section 1952, relating to interference with commerce, robbery or

extortion. To state the predicate act of extortion under § 1961(1) (B), a plaintiff must show a

violation of the Hobbs Act, 18 U.S.C. § 1951. Crawford's Auto Ctr., Inc. v. State Farm Mut. Auto.

Ins. Co., 945 F.3d 1150, 1159 (11th Cir. 2019) (citing Raney, 370 F.3d at 1087–88 (11th Cir.

2004)). “The Hobbs Act defines extortion as ‘the obtaining of property from another, with his

consent, induced by wrongful use of actual or threatened force, violence, or fear, or under

color of official right.’ ‘[E]xtortion requires an intent to obtain that which in justice and equity

the party is not entitled to receive.’ ” Id. (first quoting § 1951(b)(2), then quoting United States

v. Enmons, 410 U.S. 396, 406 n.16, 93 S. Ct. 1007, 1013 n.16, 35 L.Ed.2d 379 (1973)).

Defendants do not present any arguments as to a Hobbs Act claim.

injury to the person, property or reputation of another; and (3) threaten to expose

another to disgrace, expose a secret of another, or impute any deformity/lack of

chastity to another. Fla. Stat. § 836.05.

Defendants argue that the Amended Complaint is devoid of any allegations

which would meet the required elements of an extortion claim and that “[t]here is

nothing unlawful, much less extortionate, about presenting an employee with the

choice of resigning or facing disciplinary action.” [Doc. 18 at pp. 14-15]. Plaintiff

contends that his allegation that “Defendants . . . forced [him] to resign by extorting

him with the threat of taking his vacation and sick pay away and firing him if he

refused to resign” satisfies the pleading requirement. The Amended Complaint does

not allege a threat to Plaintiff’s property, reputation, or person. The Amended

Complaint does not allege that Plaintiff had a property interest in his job. See, e.g.,

McRae v. Douglas, 644 So. 2d 1368, 1372 (Fla. 5th DCA 1994) (noting that there must

be a legitimate expectation of continued employment to establish property interests

not created by the United States Constitution) Extortion by threat of harm to

reputation or person has also not been alleged. Mariani simply mischaracterizes as

extortion his decision to resign and receive a payout of his vacation/ sick leave. [Doc.

16 ¶ 30]. There is nothing unlawful, much less extortionate, about the choice presented

to Mariani—a choice that employees often confront when facing disciplinary action.

See e.g., Rademakers v. Scott, 350 F. App’x 408, 411-12 (11th Cir. 2009) (“Coercion does

not exist when the employee faces what she considers to be limited and disagreeable

choices regarding her employment.”). As such, Plaintiff has not alleged that one of the

predicate acts engaged in by Defendants was extortion.

c. Embezzlement or Theft of Welfare/ Pension Benefit Plan—18 U.S.C. § 664

Plaintiff alleges that “the Defendants, in their individual capacity, conspired to

violate 18 U.S. Code § 664. – Theft or embezzlement from employee benefit plan.”

[Doc. 16 ¶ 35]. This provision applies to any employee benefit plan subject to ERISA.

The statute provides:

Any person who embezzles, steals, or unlawfully and

willfully abstracts or converts to his own use or to the use of

another, any of the moneys, funds, securities, premiums,

credits, property, or other assets of any employee welfare

benefit plan or employee pension benefit plan, or of any

fund connected therewith, shall be fined under this title, or

imprisoned not more than five years, or both.

As used in this section, the term “any employee welfare

benefit plan or employee pension benefit plan” means any

employee benefit plan subject to any provision of title I of

the Employee Retirement Income Security Act of 1974.

18 U.S.C. § 664. Defendant argues that the complaint “does not contain a single

allegation that would indicate any [D]efendant engaged in theft or embezzlement of

assets of an employee benefit plan.” [Doc. 18 at p. 15]. The Court agrees. Beyond the

statutory language, there are no allegations in the Amended Complaint regarding theft

of assets of an employee benefit plan. Plaintiff therefore fails to sufficiently plead a

claim for theft or embezzlement of assets of an employee benefit plan.6

6 The Court notes Defendants’ argument that “the Sheriff’s Office participates in the Florida

Retirement System (‘FRS’)—a governmental plan exempt from ERISA.” [Doc. 18 at p. 15].

d. Pattern of Racketeering Activity

Defendant also argues that the Amended Complaint is devoid of any allegations

regarding a pattern and practice of racketeering activity. [Doc. 18 at pp. 16-17]. “To

successfully allege a pattern of racketeering activity, plaintiffs must charge that: (1) the

defendants committed two or more predicate acts within a ten-year time span; (2) the

predicate acts were related to one another; and (3) the predicate acts demonstrated

criminal conduct of a continuing nature.” Jackson v. BellSouth Telecommunications, 372

F.3d 1250, 1264 (11th Cir. 2004). As the discussion above makes clear, Plaintiff has

not sufficiently alleged two or more predicate acts. This also precludes a finding that

there is a relationship between predicate acts. The Court also agrees with Defendant

that Plaintiff has not alleged criminal conduct of a continuing nature. Count I is

therefore due to be dismissed as Plaintiff has failed to state a claim upon which relief

can be granted.

e. Qualified Immunity

Defendants argue that qualified immunity applies as Plaintiff appears to

challenge his write ups and ultimate resignation and his allegations plainly

contemplate actions taken within the course and scope of Defendants’ employment

with the PCSO. Id. at pp. 17-19. Additionally, they argue that the claim is based on

alleged violations of federal criminal statutes which are plainly inapplicable and there

is no authority that would have placed them on notice that they could be individually

liable under federal or RICO statutes. Id. at pp. 19-20.

“Qualified immunity shields government officials from liability for civil

damages for torts committed while performing discretionary duties unless their

conduct violates a clearly established statutory or constitutional right.” Stephens v.

DeGiovanni, 852 F.3d 1298, 1314 (11th Cir. 2017) (quoting Hadley v. Gutierrez, 526 F.3d

1324, 1329 (11th Cir. 2008)). When qualified immunity applies, it is ‘an immunity

from suit rather than a mere defense to liability and the doctrine shields all but the

plainly incompetent or those who knowingly violate the law. Crocker v. Beatty, 995 F.3d

1232, 1239 (11th Cir. 2021). In evaluating whether qualified immunity applies, a court

determines (1) whether the facts alleged make out a violation of a constitutional right

and (2) whether that right was “clearly established” at the time of the alleged

misconduct. See Pearson v. Callahan, 555 U.S. 223, 232 (2009).

In assessing whether Defendants were engaged in a discretionary act, “[w]e ask

whether the government employee was (a) performing a legitimate job-related function

(that is, pursuing a job-related goal), (b) through means that were within his power to

utilize.”). Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004).

Defendants provide argument and citation to legal authority that a defendant acts with

discretionary authority when considering an employee’s conduct and administering

discipline or when terminating an employee. See,e.g., Sims v. Metro. Dade Cty., 972 F.2d

1230, 1236 (11th Cir. 1992) (holding that supervisory employees acted within the scope

of discretionary authority in imposing three-day suspension); Stanley v. City of Dalton,

Ga., 219 F.3d 1280, 1285 (11th Cir. 2000) (“It is undisputed that Chadwick acted

within his discretionary authority in terminating Stanley.”). Plaintiff does not dispute

this. The enforcement of operational demands and exercise of discipline on

noncompliant officers falls within Defendants’ job-related powers and responsibilities.

See O'Rourke v. Hayes, 378 F.3d 1201, 1205 (11th Cir. 2004). As such, the Amended

Complaint alleges that Defendants engaged in a discretionary act.

However, the Complaint does not allege a violation of a constitutional right that

was “clearly established” at the time of the alleged misconduct. Pearson, 555 U.S. at

232. The Amended Complaint alleges that Defendants, all of them lumped together,

targeted those employees who would not exhibit undying loyalty to all operational

demands of Defendants, including clearly unlawful and unconstitutional treatment of

various citizen targets of the PCSO, regardless of there being no probable cause or

lawful basis for the targeting of said citizens. [Doc. 16 ¶ 16]. There is no allegation as

to what specific constitutional right of Plaintiff is impugned by Defendants’ action.7

“If no constitutional violation is established, then the defendants prevail, and ‘there is

no necessity for further inquiries concerning qualified immunity.’ ” Holmes v. Kucynda,

321 F.3d 1069, 1077 (11th Cir. 2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Even then, Plaintiffs have not established that the supposed right was clearly

established at the time it was violated by defendants. For a right to be clearly

established, “[t]he contours of the right must be sufficiently clear that a reasonable

7 The Constitutional claims arising under “the Fourth, Fifth, and Fourteenth Amendment to

the United States Constitution” are “alleged against Defendants in their official capacities”—

which is raised in Count II. [Doc. 16 ¶ 2]. Additionally, the allegation that Defendants

violated Plaintiff’s right to free speech is presented only as to Count II. Id. ¶ 41.

official would understand that what he is doing violates that right.” Corbitt v. Vickers,

929 F.3d 1304, 1311 (11th Cir. 2019).

A plaintiff can show that the contours of a right were clearly

established in one of three ways. First, a plaintiff can point

to a “materially similar case that has already been

decided.” . . . Second, a plaintiff can point to a “a broader,

clearly established principle that should control the novel

facts of the situation.” . . . And third, a plaintiff can show

that “the conduct involved in the case may so obviously

violate the Constitution that prior case law is

unnecessary.” . . .

Wade v. United States, 13 F.4th 1217, 1226 (11th Cir. 2021), cert. denied sub nom. Wade,

Charles v. Lewis, Gordon, No. 21-1141, 2022 WL 892132 (U.S. Mar. 28, 2022). Plaintiff

has not cited any materially similar case, nor has he pointed to a broader clearly

established principle. Additionally, he does not allege conduct that so obviously

violates the Constitution that prior law is unnecessary. As Plaintiff has not

demonstrated that he suffered harm to a clearly established constitutional right,

qualified immunity shields Defendants from being sued based on the allegations here.

iv. Plaintiff Fails to State a Constitutional Claim Upon Which

Relief May Be Granted

Count II alleges an alternative claim for “constitutional violations committed

by Defendants in their official capacities.” [Doc. 16 ¶¶ 37-42]. Plaintiff alleges that

Defendants punished him for exercising his First Amendment rights and that Sheriff

Nocco forced him to resign for the violations falsely alleged against him, and in doing

so, took away a property right protected by the Constitution. Id. ¶¶ 40-41. The acts of

Defendants allegedly abridged and restrained Plaintiffs' rights to free speech as

guaranteed by the Florida and United States Constitution; constitutes an

impermissible "chilling effect" on constitutionally protected speech and expression;

denied Plaintiff equal protection of the law; and constitute an unlawful and

unauthorized taking of Plaintiff’s job via forced resignation. Id. ¶ 41. In seeking

dismissal of this claim, Defendants first argue that it is redundant as to each Defendant

except Sheriff Nocco. [Doc. 18 at p. 21]. In addition, they argue that the Amended

Complaint fails to allege how Plaintiff’s constitutional rights were

infringed/implicated by Defendants’ alleged conduct. Id. at p. 21. As to a claim

pursuant to the Fifth Amendment, they argue that it is plainly inapplicable as the Fifth

Amendment only protects against infringement by federal actors. As to the First

Amendment, they argue that Plaintiff must allege his rights were infringed by

enforcement of a policy or custom of the Sheriff and must also allege facts which

establish that he spoke as a private citizen on a matter of public concern—neither of

which has been alleged here. Id. at pp. 2

A suit against a municipal officer in his official capacity is effectively a suit

against the government entity that the officer represents. Lopez v. Gibson, 770 F. App'x

982, 991 (11th Cir. 2019) (citing Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402

F.3d 1092, 1115 (11th Cir. 2005)). Thus, a suit against Defendants in their official

capacities, the claim in Count II, is effectively an action against the PCSO, the

governmental entity Defendants represent. Additionally, municipal liability exists

only when a “policy or custom’ of the municipality inflicts the injury.” Cook ex rel.

Estate of Tessier, 402 F.3d at 1116.

The First Amendment free speech claim fails as a threshold matter as Plaintiff

does not allege what constitutionally protected speech was restrained. Likewise,

Plaintiff does not allege sufficient facts to establish a property interest in his job such

that the takings claim also fails.

Moreover, the Amended Complaint does not allege that there was an official

policy at the PCSO of retaliating against employees who exercised their First

Amendment rights or of taking away property from employees who did not comply

with their demands. In fact, Plaintiff points to no such allegations in its response. “[A]

county is liable only when the county's “official policy” causes a constitutional

violation.” Grech v. Clayton Cty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003). Plaintiff

may establish a county's policy by identifying either an officially promulgated county

policy or an unofficial custom or practice of the county shown through the repeated

acts of a final policymaker for the county. Id. at 1329 (citing cases). See also Quinn v.

Monroe Cty., 330 F.3d 1320, 1325 (11th Cir. 2003) (“Municipal liability may arise with

regards to an employment decision, such as a termination, provided that the

decisionmaker possesses final authority to establish municipal policy with respect to the

action ordered.”) (quotation omitted). Plaintiff’s general allegation that Defendants

have engaged in a pattern and practice is not sufficient to meet this burden. As such,

this claim is also insufficiently pleaded and subject to dismissal for failure to state a

claim upon which relief may be granted.

IV. CONCLUSION

In sum, the Amended Complaint is subject to dismissal on several grounds. The

Amended Complaint is a shotgun pleading. Count I fails to state a claim upon which

relief may be granted. Additionally, Defendants are immune from the claim in Count

I. And as to Count I, Plaintiff lacks a private right of action under Florida law. Also,

Count II fails to state a claim upon which relief may be granted. The Court further

notes that Plaintiff has had ample opportunities to plead sufficient claims against

Defendants, as well as guidance in doing so from this Court. 8 As such, leave to amend

the claims is not warranted. Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358 (11th

Cir. 2018). The Complaint is therefore subject to dismissal, with prejudice.

Accordingly, it is hereby ORDERED:

1. Defendants' Dispositive Motion to Dismiss Plaintiff's Amended

Complaint [Doc. 18] is GRANTED.

2. The Amended Complaint is DISMISSED [16], with prejudice.

3. The Clerk is directed to enter a judgment in favor of Defendants

Christopher Nocco, Jeffrey Harrington, Michael Farrantelli, Stacy

Jenkins, and Ed Beckman and against Plaintiff Dean Mariani.

4. The Clerk is further directed to terminate all pending motions and close

this case.

8 Plaintiff had several opportunities to state claims against Defendants before his claims were

severed and has had an additional opportunity since then.

DONE AND ORDERED in Tampa, Florida on March 29, 2022.

OC Ae Mies: Jarde Nor Ts pl el □□

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record and Unrepresented Parties, if any

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