Johnson v. Curry

United States District Court

Middle District of Florida

Jacksonville Division

EARL M. JOHNSON, JR.,

Plaintiff,

v. NO. 3:21-cv-726-MMH-PDB

LENNY CURRY & RONALD DESANTIS,

Defendants.

Order

Earl Johnson, Jr., proceeding pro se, sues Mayor Lenny Curry and

Governor Ronald DeSantis under 42 U.S.C. § 1981 and § 1983, alleging their

“enactment of general budgetary allocations” supporting Confederate

monuments or “tributes” violates Mr. Johnson’s rights under the Thirteenth

and Fourteenth Amendments. D1.

The City of Jacksonville, on behalf of Mayor Curry, and Governor

DeSantis move to dismiss the action. D16, D19. They contend Mr. Johnson

lacks standing and fails to state a claim upon which relief can be granted.

Governor DeSantis additionally argues the matter is unripe. D19 at 13–14. Mr.

Johnson opposes the motions. D36, D37. The motions were referred to the

undersigned for a report and recommendation. D51.

At a December 2021 status conference, the undersigned discussed

staying the case pending a decision in Ladies Memorial Ass’n v. City of

Pensacola, Appeal No. 20-14003, consolidated with Ladies Memorial Ass’n v.

Florida Secretary of State, Appeal No. 21-11072, which had been fully briefed.

D47, D48. In March 2022, the Court stayed discovery and relieved the parties

of their obligation to file a case management report pending a ruling on the

motions to dismiss. D50.

In May 2022, the United States Court of Appeals for the Eleventh Circuit

decided Ladies Memorial Ass’n v. City of Pensacola, 34 F.4th 988 (11th Cir.

2022). At the Court’s direction, the parties conferred in good faith to try to

resolve the litigation and, unable to do so, D54, filed supplemental briefing on

Ladies Memorial, D55–D57.

Complaint Allegations1

Mr. Johnson alleges he is “African American (a Black person), the

descendant of enslaved African Americans then-held in Confederate states,

and a payor of local and state taxes within the jurisdiction.” D1 ¶ 6.

Mr. Johnson provides “general allegations” about the Confederacy:

9. The Confederate States of America, also known as the

Confederacy, … founded [in] 1860, in treason, included 11

southern states seceding from the United States of America, and

caused the Civil War to preserve the enslavement of African

1A court must construe a pleading drafted by a pro se litigant liberally and hold the

pleading to a less stringent standard than one drafted by a lawyer. Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998).

Mr. Johnson has a J.D. but is ineligible to practice law in Florida. See Member Profile,

The Florida Bar, https://www.floridabar.org/directories/find-mbr/profile/?num=6040 (last

visited August 8, 2022).

Whether a court should apply the liberal construction standard to a pleading drafted

by a pro se lawyer who is unlicensed is unclear. Compare, e.g., McNamara v. Brauchler, 570

F. App’x 741, 743 & n.2 (10th Cir. 2014) (declining to apply liberal construction standard to

disbarred lawyer), with, e.g., Barraza v. United States, No. EP-09-CR-978-FM-1, 2014 WL

12722887, at *2 n.7 (W.D. Tex. Mar. 12, 2014) (applying liberal construction standard to

disbarred lawyer). Regardless of whether the standard applies here, the result is the same.

Americans (Black people) being held against their will in those

states.

10. On March 21, 1861, weeks before the start of the Civil War,

Alexander Stephens, the Vice President of the Confederacy,

underscored the White supremacy bedrock of the secessionist

government in his Cornerstone Speech:

Our new government is founded upon the great

truth that the Negro is not equal to the White man;

that slavery, subordination to the superior race, is

his natural and normal condition.

Alexander Stephens, V.P., C.S.A.

11. Following the defeat of the Confederacy in the Civil War, and

during Reconstruction that followed, White supremacy

organizations emerged such as the Klu [sic] Klux Klan (“KKK”),

Knights of the White Camellias and White League, seeking to

preserve White supremacy through murder, violence and

intimidation in Florida and throughout the country.

12. By 1912 women’[s] auxiliary groups such as the United

Daughters of the Confederacy (“UDC”), rose to promote the

falsehood of benign ownership of Black Americans and White

supremacy; and spread nationally to over 45,000 members and

800 chapters, often defending and working with the KKK to

“protect whites from negro rule.”

13. In 1914, the in-house historian of the UDC Mississippi chapter,

Laura Martin Rose, published The Ku Klux Klan, or Invisible

Empire. The daughter of the Confederacy praises the KKK for its

work in the field of domestic terror in the years following the Civil

War, when Blacks achieved a modicum of political power.

14. “[D]uring the Reconstruction period, sturdy white men of the

South, against all odds, maintained white supremacy and secured

Caucasian civilization, when its very foundations were

threatened within and without,” Rose writes. She goes on to

provide a look at the roots of racist anti-Black stereotypes and

language in this country. For example, she accuses Black people

of laziness — and wanting a handout — for refusing to keep

working for free for White enslavers, and instead trying to find

fortune where the jobs were: “Many negroes conceived the idea

that freedom meant cessation from labor, so they left the fields,

crowding into the cities and towns, expecting to be fed by the

United States Government.”

D1 ¶¶ 9–14 (emphasis and citation omitted).

Mr. Johnson provides allegations about certain Confederate monuments

and tributes built in North Carolina and Florida and their connection to violent

acts against African Americans:

15. ln 1926, the UDC erected a monument to the KKK outside of

Concord, NC.

16. Eleven years earlier, in 1915, the Florida UDC erected the

Florida’s Tribute to the Women of the Confederacy, on public land

in Jacksonville, in the aptly named Confederate Park.

17. In 1905 and in 1910, the UDC placed Confederate monuments at

Lakeland and Ocala, in the Middle District of Florida. There are

several other homages to the Confederacy on public land

remaining in the Middle District of Florida.

18. Spectacle lynching, massacre, violence, rape, intimidation,

divestment of Black-owned land and Jim Crow (White supremacy

law) accompanied the placement of Confederate monuments and

homages on public land such as the courthouse monument in

Palatka, Florida, within the Middle District.

19. Florida accounts for over 250 lynchings of Black people by White

mobs, with many occurring in Jacksonville. These murders

happened without recourse from state law enforcement or

prosecution.

20. In January 1923, the Black township of Rosewood, Florida, in

Levy County, was the location of a violent riot by KKK members

and other White supremacists, massacring the townspeople,

murdering upwards of 150 African Americans and stealing the

land, businesses and farms of the residents of Rosewood. No one

was ever prosecuted for the crimes.

21. In August of 1960, at [James Weldon Johnson Park (formerly

known as Hemming Park)2], the site of the Florida Confederate

Soldiers Monument in Jacksonville, hundreds of White men

armed with ax handles (some dressed as Confederate soldiers)

ambushed peaceful Black students protesting Jim Crow law,

beating them bloody. The mass assault came to be known as Ax

Handle Saturday. No one was ever prosecuted for the crimes.

D1 ¶¶ 15–21 (footnote omitted).

According to Mr. Johnson, almost 1,800 Confederate monuments have

been built on “public land in America”; Florida has “dozens of monuments and

homages to the Confederacy on tax-funded public land, excluding parks,

schools, streets, roads and other publicly funded locations named for the

Confederacy or confederates”; and Jacksonville has more than eleven “tributes

to the Confederacy on public land, not including schools, streets and roads

named for the Confederacy or confederates.” D1 ¶¶ 22, 23, 25. Mr. Johnson

alleges “[w]hite supremacist organizations, such [as] the KKK, Nazis and

others have and continue to use Confederate tribute sites in Florida and

throughout the country for rallies and the incitement of violence.” D1 ¶ 24.

Mr. Johnson states that in June 2020, Mayor Curry removed the

Confederate “mammoth bronze Confederate soldier that stood atop the 40-

plus-foot-long pedestal” at James Weldon Johnson Park. D1 ¶ 27. But despite

“publicly declar[ing] the City’s removal of all other Confederate tributes on

public land in Jacksonville,” D1 ¶ 27, Mayor Curry has “failed and refused to

remove Confederate tributes from public land and the imposing Florida

Confederate Soldiers Memorial pedestal remains at the town center square,

along with the other Confederate homages throughout the City.” D1 ¶ 28. Mr.

2Hemming Park was renamed James Weldon Johnson Park in 2020. D1 at 5 n.1.

Johnson adds that Governor DeSantis also has “clearly expressed support for

maintaining public funding for tributes to the Confederacy.” D1 ¶ 29.

Mr. Johnson alleges that Mayor Curry and Governor DeSantis “continue

[to] enact general budgetary allocations inuring to the presence, maintenance,

preservation and protection of monuments or tributes to the Confederacy on

public City and State land, through public tax-based funding, under the color

of law.” D1 ¶ 30. He further alleges that their conduct is “continuing in nature.”

D1 ¶ 31.

Mr. Johnson brings a single count against both defendants for

“VIOLATION OF 13TH AMENDMENT, 14TH AMENDMENT, FEDERAL

DUE PROCESS, EQUAL PROTECTION, CIVIL RIGHTS LAWS UNDER 42

U.S.C. 1981, 1983 and 28 U.S.C. Sections 1343, 2201 et al[.]”3 D1 at 7. Under

that count, he states:

34. Plaintiff travels under 42 U.S.C. Section 1983, to enforce

Plaintiff’s clearly defined rights, under the 13th and 14th

Amendment provisions of the United States Constitution,

protecting Plaintiff’s rights to be free of the badges, indicia and

vestiges of slavery and to equal protection under the law.

35. Defendants’ enactment of general budgetary allocations inuring

to the presence, maintenance, preservation and protection of

monuments or tributes to the Confederacy located on public land,

through public funding under color of law, amounts to an

intentional governmental endorsement of White supremacy and

the ideology that Black Americans are inferior and subhuman,

violating Plaintiff’s 13th and 14th Amendment protections.

36. Defendants, with reckless disregard for Plaintiff’s rights, further

took intentional actions depriving Plaintiff of his equal protection

rights by enacting general budgetary allocations inuring to the

328 U.S.C. §§ 1343 and 2201 do not provide a claim for relief. Section 1343 grants

federal courts jurisdiction over civil rights cases, and § 2201 grants federal courts the power

to enter a declaratory judgment.

presence, maintenance, preservation and protection of

monuments or tributes to the Confederacy on public City and

State land, through public tax-based funding, under the color of

law.

37. The fundamental liberties protected by the 14th Amendment’s

Due Process Clause extend to certain choices to individual dignity

and autonomy. Accordingly, courts must exercise reasoned

judgment in identifying interests of the person so fundamental

that the State must accord them its respect.

38. The budgetary laws challenged herein burden the liberty of

Plaintiff and other African Americans and they abridge central

precepts of equality.

D1 ¶¶ 34–38 (citation omitted).

Mr. Johnson states neither defendant is entitled to immunity, including

Eleventh Amendment immunity and qualified immunity, because their

“conduct was not reasonable” and he seeks no “monetary damages.” D1 ¶ 40.

He alleges that “[a]s a direct and proximate result of Defendants’ conduct

alleged in th[e] complaint, Plaintiff has suffered.” D1 ¶ 41.

Mr. Johnson requests only equitable relief:

[1] [A] declaratory judgment under 28 U.S.C. § 2201 “finding the

enactment of general budgetary allocations inuring to the

presence, maintenance, preservation and protection of

monuments or tributes to the Confederacy on public City and

State land, through public tax-based funding, to be

unconstitutional as violating the 13th and 14th Amendments

under color of law[, and]

[2] a permanent injunction, enjoining Defendants from further

enacting … general budgetary allocations inuring to the presence,

maintenance, preservation and protection of monuments or

tributes to the Confederacy on public City and State land, through

public tax-based funding, as violating the 13th and 14th

Amendments under color of law.

D1 ¶¶ 43, 44.

Arguments

Mayor Curry makes these arguments about standing. Mr. Johnson’s

“vague and conclusory” allegation he “has suffered” is insufficiently concrete

and particularized to confer standing. D16 at 6. “[H]ow [the] requested

relief … would further [Mr. Johnson’s] apparent goal: to eradicate the vestiges

of slavery and discrimination in Jacksonville” is unclear. D16 at 7. Mr. Johnson

lacks taxpayer standing because “[n]otwithstanding Plaintiff’s vague and

conclusory allegations suggesting he is a taxpayer and that confederate

monuments are maintained with City taxes, Plaintiff has not pled any concrete

injury, nor has he alleged any injury that is particular to him and would not

equally apply to any other municipal taxpayer.” D56 at 4–5.

Mayor Curry makes these arguments about Mr. Johnson’s claims. The

Fourteenth Amendment claim fails because he makes no

“allegations approaching a claim that the monuments have some sort of

unequal impact on hi[m.]” D16 at 8. The Thirteenth Amendment claim fails

because no applicable federal statute exists. See D16 at 9. The “federal due

process” claim “ remains a mystery and has not been well pled.” D16 at 9.

Section 1981 is inapplicable because he alleges no “intentional race

discrimination against [him] that caused a contractual injury.” D16 at 9. And

the complaint is a “shotgun” pleading because it “incorporates vague and

immaterial allegations.” D16 at 10.

Governor DeSantis makes these arguments about standing. Mr.

Johnson’s “conclusory allegation that he suffered without alleging how he

himself suffered in a particular, personal, and individual way, separate or

differentiated from others is too vague and abstract to implicate standing or a

concrete and particularized injury.” D19 at 9–10. Governor DeSantis “is the

wrong party since he is not responsible for the challenged action and does not

have some connection to the allegedly unconstitutional act at issue.” D19 at 12.

Mr. Johnson “challenges what is essentially a nonjusticiable political question

and decision in Florida and makes only generalized grievances.” D19 at 9. He

“must plead but has not pled that his taxes are being used to fund a violation

of his constitutional right.” D19 at 10.

Governor DeSantis makes these arguments about Mr. Johnson’s claims.

The Fourteenth Amendment claim fails because he fails to allege unequal

treatment or discriminatory intent and identify “any specific fundamental

interest that is violated by the alleged enactments.” D19 at 17–19. The

Thirteenth Amendment claim fails because no “federal legislation” exists

“forbidding the maintenance of monuments or tributes to the Confederacy by

enactment of ‘general budgetary allocations’ of state taxes[.]” D19 at 21. And

Governor DeSantis is immune from suit under the Eleventh Amendment and

“is not a ‘person’ for purposes of [§ 1983].” D19 at 23–24.

Governor DeSantis also briefly argues Mr. Johnson’s claims are unripe

because they are “based on sheer speculation about future hypothetical

budgets that may never materialize.” D19 at 14.

Responding to the defendants’ arguments on standing, Mr. Johnson

contends “standing has been sufficiently pled”:

Plaintiff provides a clear and plain statement that he is the descendant

of enslaved Black people, held in Confederate states prior and during

the Civil War; that the Confederacy’s cornerstone ideology is White

supremacy over Black Americans whose natural state is enslavement to

White people; that following the Confederacy’s defeat White supremacy

organizations emerged to foster White supremacy ideology and, in that

effort, erected monuments and tributes to the Confederacy — which are

badges of slavery — on City public land — presented, maintained,

preserved and protected via Plaintiff’s local [and state] tax dollars; that

such amounts to an intentional governmental endorsement of White

supremacy and the ideology that Black Americans are inferior and

subhuman, infringing upon Plaintiff’s liberty, abridging his central

precepts of racial equality, violating Plaintiff’s 13th and 14th

Amendment protections and equal protection rights; and to redress the

matter, Plaintiff prays that the Court find the budgetary enactments to

be unconstitutional.

D36 at 7–8; D37 at 8–9.

Responding to the defendants’ arguments about his claims, Mr. Johnson

focuses on the Thirteenth Amendment claim, arguing Confederate monuments

and tributes are “badges of slavery” and thus violate the Thirteenth

Amendment. D36 at 10; D37 at 14–15. He argues the complaint is not a

shotgun pleading because the allegations relate to his claims. D36 at 11. And

he argues the Eleventh Amendment is inapplicable because “a suit against an

officer of a state directing him to refrain from unconstitutional conduct is not

a suit against a state within the meaning of the eleventh amendment[.]” D37

at 15 (quoting Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988)).4

Law

Article III of the United States Constitution grants federal courts

jurisdiction over only enumerated categories of “cases” and “controversies.”

4The Eleventh Amendment prohibits a federal court from exercising jurisdiction over

an action against a state unless the state has consented to suit or has waived its immunity

or Congress has overridden the immunity. Cross v. State of Ala., 49 F.3d 1490, 1502 (11th

Cir. 1995). But under the Ex Parte Young doctrine, a suit for prospective relief to enjoin a

state official from enforcing an unconstitutional act is not a suit against the state and thus

is not barred by the Eleventh Amendment. Scott v. Taylor, 405 F.3d 1251, 1255 (11th Cir.

2005); see Ex parte Young, 209 U.S. 123 (1908).

Generally, a state official sued in his official capacity is not a suable “person” under

§ 1983. Will v. Mich. Dep’t. of State Police, 491 U.S. 58, 71 (1989). But a plaintiff may sue a

state official in his official capacity under § 1983 for prospective injunctive relief. Id. n.10.

U.S. Const. Art. III, § 2. Standing is part of the case or controversy

requirement. Fed. Election Comm’n v. Cruz, 142 S. Ct. 1638, 1646 (2022).

Standing is a threshold question a court must analyze before addressing

the merits of a case. Gardner v. Mutz, 962 F.3d 1329, 1339 (11th Cir. 2020).

“That threshold requirement ensures that [judges] act as judges, and do not

engage in policymaking properly left to elected representatives.” Gill v.

Whitford, 138 S. Ct. 1916, 1923 (2018) (internal quotation marks omitted).

A plaintiff must establish standing. TransUnion LLC v. Ramirez, 141 S.

Ct. 2190, 2207 (2021). To establish standing, a plaintiff must show three

elements: “(1) an injury in fact, (2) fairly traceable to the challenged conduct of

the defendant, (3) that is likely to be redressed by the requested relief.” Cruz,

142 S. Ct. at 1646. The injury “must be concrete and particularized and actual

or imminent, not conjectural or hypothetical.” Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158 (2014) (internal quotation marks omitted). A

plaintiff seeking declaratory or injunctive relief must prove “a real and

immediate threat of future injury” and “a sufficient likelihood that he will be

affected by the allegedly unlawful conduct in the future.” Koziara v. City of

Casselberry, 392 F.3d 1302, 1305–06 (11th Cir. 2004). Traceability requires “a

causal connection between the injury and the conduct complained of.” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992). “Redressability is established when

a favorable decision would amount to a significant increase in the likelihood

that the plaintiff would obtain relief that directly redresses the injury

suffered.” Fla. Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296,

1303–04 (11th Cir. 2011).

“[A]t the pleading stage, the plaintiff must clearly allege facts

demonstrating each element.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016),

as revised (May 24, 2016) (internal quotation marks omitted). The plaintiff

must show “standing for each claim he seeks to press” and “for each form of

relief” sought. Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008). When

ruling on a motion to dismiss, the court “must evaluate standing based on the

facts alleged in the complaint” and “may not speculate concerning the existence

of standing or piece together support for the plaintiff.” Duty Free Ams., Inc. v.

Estee Lauder Cos., 797 F.3d 1248, 1271 (11th Cir. 2015).

“Absent special circumstances … standing cannot be based on a

plaintiff’s mere status as a taxpayer.” Ariz. Christian Sch. Tuition Org. v.

Winn, 563 U.S. 125, 134 (2011). But the general prohibition against taxpayer

standing may be inapplicable to municipal taxpayers. See DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 349 (2006) (recognizing the Supreme Court has

“noted with approval the standing of municipal residents to enjoin the ‘illegal

use of the moneys of a municipal corporation,’ relying on ‘the peculiar relation

of the corporate taxpayer to the corporation’ to distinguish such a case from

the general bar on taxpayer suits” (quoting Commonwealth of Mass. v. Mellon,

262 U.S. 447, 486 (1923))); Protect Our Parks, Inc. v. Chi. Park Dist., 971 F.3d

722, 733–34 (7th Cir. 2020) (recognizing the Supreme Court’s distinction

between federal and municipal taxpayers “remains undisturbed” but observing

“it has grown increasingly anomalous”), cert. denied sub nom. Protect Our

Parks, Inc. v. City of Chicago, Illinois, 141 S. Ct. 2583 (2021); Smith v. Jefferson

Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 210 (6th Cir. 2011) (recognizing that

“[p]laintiffs seeking to establish municipal-taxpayer standing are required to

meet a less rigorous injury standard than those seeking standing as federal or

state taxpayers” and “may fulfill the injury requirement by pleading an alleged

misuse of municipal funds”); Pelphrey v. Cobb Cnty., 547 F.3d 1263, 1280 (11th

Cir. 2008) (recognizing “[t]he standing of municipal taxpayers to challenge, as

unconstitutional, expenditures by local governments remains settled law” and

holding “[m]unicipal taxpayers have standing to challenge unconstitutional

expenditures if their interest is direct and immediate” (internal quotation

marks omitted)).

A complaint must contain “a short and plain statement of the grounds

for the court’s jurisdiction,” “a short and plain statement of the claim showing

that the [plaintiff] is entitled to relief,” and “a demand for the relief sought,

which may include relief in the alternative or different types of relief.” Fed. R.

Civ. P. 8(a). If “doing so would promote clarity, each claim founded on a

separate transaction or occurrence … must be stated in a separate count[.]”

Fed. R. Civ. P. 10(b). Any matter in a complaint that is “redundant, immaterial,

impertinent, or scandalous” is subject to being stricken. Fed. R. Civ. P. 12(f).

The United States Supreme Court explained the pleading standard in

Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007). The standard does not require detailed factual allegations but

requires “more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 678. Labels, conclusions, formulaic recitations

of the elements, and “naked assertions devoid of further factual enhancement”

are insufficient. Id. (cleaned up). The rule “does not unlock the doors of

discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–

79.

A complaint must contain sufficient factual matter, accepted as true, to

“state a claim to relief that is plausible on its face.” Id. at 678. A claim is

plausible on its face if “the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. Plausibility differs from probability, “but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id.

Shotgun pleadings are generally categorized into four types: (1) “a

complaint containing multiple counts where each count adopts the allegations

of all preceding counts, causing each successive count to carry all that came

before and the last count to be a combination of the entire complaint”; (2) a

complaint “replete with conclusory, vague, and immaterial facts not obviously

connected to any particular cause of action”; (3) a complaint that fails to

“separate each cause of action or claim for relief into a different count”; and

(4) a complaint that “assert[s] multiple claims against multiple defendants

without specifying which of the defendants are responsible for which acts or

omissions, or which of the defendants the claim is brought against.” Barmapov

v. Amuial, 986 F.3d 1321, 1324–25 (11th Cir. 2021) (alteration in original).

“The 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 rest.” Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1323

(11th Cir. 2015).

A shotgun pleading makes it “virtually impossible to know which

allegations of fact are intended to support which claim(s) for relief.” Paylor v.

Hartford Fire Ins. Co., 748 F.3d 1117, 1126 (11th Cir. 2014). The Eleventh

Circuit has “roundly, repeatedly, and consistently” condemned shotgun

pleadings. Id. at 1125. “[I]f, in the face of a shotgun complaint, the defendant

does not move the district court to require a more definite statement, the court,

in the exercise of its inherent power, must intervene sua sponte and order a

repleader.” Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001); cf. Vibe

Micro, Inc. v. Shabanets, 878 F.3d 1291, 1296 (11th Cir. 2018) (“When a litigant

files a shotgun pleading, is represented by counsel, and fails to request leave

to amend, a district court must sua sponte give him one chance to replead

before dismissing his case with prejudice on non-merits shotgun pleading

grounds.”).

Analysis

Mr. Johnson’s complaint is a shotgun pleading because it is replete with

vague allegations and fails to separate into a different count each claim for

relief. Due to the shotgun nature of the pleading and the absence of factual

allegations about the challenged conduct and the alleged injury, the Court

cannot conduct a standing analysis.

Regarding injury, Mr. Johnson merely asserts, without more, that

because of unspecified budgetary allocations, he “has suffered,” D1 ¶ 41, he has

been deprived of his equal protection rights, D1 ¶ 36, and his rights under the

Thirteenth and Fourteenth Amendments have been violated, D1 ¶ 35. He

alleges no facts regarding the nature of the “general budgetary allocations,”

merely alleging they “inure” to the “presence, maintenance, preservation, and

protection” of Confederate monuments and tributes. How the allocations

specifically affect the monuments and tributes or how his local or state taxes

are used in those allocations is not alleged.

Also unclear is the specific conduct about which Mr. Johnson complains.

In his “general allegations,” D1 at 2, about the history of the Civil War and

subsequent construction of Confederate monuments, he specifically references

two monuments in Jacksonville and a “courthouse monument” in Palatka, and

he generally refers to other monuments by the United Daughters of the

Confederacy placed in the Middle District of Florida, including Lakeland and

Ocala. D1 ¶ 17. But he fails to allege which monuments or “tributes” are

affected by the budgetary allocations. He references “parks, schools, streets,

roads and other publicly funded locations named for the Confederacy or

confederates,” D1 ¶¶ 22, 25, but he specifies none, and whether they are also

included in his claim and extend outside of Jacksonville is unclear. Moreover,

he fails to allege the specific conduct attributed to each defendant (i.e., each

defendant’s precise role in the challenged “enactments”).

Despite asserting what appears to be multiple claims (violations of his

rights under the Thirteenth Amendment and his due-process and equal-

protection rights under the Fourteenth Amendment) under two statutes (42

U.S.C. §§ 1981, 1983) seeking two types of relief (injunctive and declaratory)

against two defendants (a city mayor and a state governor), he asserts only one

count. And the count itself references only § 1983. See generally D1 ¶¶ 32–42.

He also fails to state whether he is asserting a procedural due process claim or

a substantive due process claim, and he identifies no specific interest being

violated under the Fourteenth Amendment. Mr. Johnson’s failure to separate

into a different count and sufficiently describe each claim for relief violates the

pleading requirements.

The complaint also lacks sufficient factual allegations about the claims

for relief. Without a well-pleaded complaint, the Court cannot determine

whether, if standing is present, Mr. Johnson has plausibly stated a claim for

relief.

Mr. Johnson’s conclusory allegations and failure to address each claim

for relief separately fails to give adequate notice of the claims against the

defendants. See Iqbal, 556 U.S. at 678; Weiland, 792 F.3d at 1323. And because

the injury alleged is vague and the challenged conduct is unspecified, the Court

cannot determine whether an injury-in-fact fairly traceable to the defendants’

conduct exists.

At the December 2021 status conference, Mr. Johnson asserted discovery

in the case will entail “the chain that begins with ... [his] taxpayer dollars, and

how they make their way to the benefit of these confederate monuments that

[he is] complaining about.” D48 at 22. Though discovery on this issue may be

needed to allege an adequate factual basis for taxpayer or other standing, the

scope of discovery is difficult, if not impossible, to define due to the vagueness

of the complaint (particularly, the lack of specificity about which monuments

or “tributes” Mr. Johnson challenges).

Thus, the Court strikes the complaint and directs Mr. Johnson to file

an amended complaint that complies with the pleading rules. He must file the

amended complaint by September 8, 2022. The motions to dismiss the

complaint, D16, D19, are denied without prejudice.

Ordered in Jacksonville, Florida, on August 8, 2022.

PATRICIA D. BARKSDALE

United States Magistrate Judge

Counsel of record (via CM/ECF)

Earl M. Johnson, Jr. (via USPS and email)

1635 North Liberty Street, No. 3

Jacksonville, FL 32206

earlmayberryjohnson@gmail.com

17