Crosby v. State of Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JAMES B. CROSBY,

Plaintiff,

Case No. 3:22-cv-67-MMH-LLL

vs.

STATE OF FLORIDA, et al.,

Defendants.

/

O R D E R

THIS CAUSE is before the Court on Defendant City of Jacksonville’s

Motion to Dismiss Third Amended Complaint with Prejudice and Supporting

Memorandum of Law (Doc. 53; Motion), filed on April 22, 2022. In the Motion,

Defendant City of Jacksonville (the City) moves to dismiss this action with

prejudice for failure to state a claim upon which relief can be granted pursuant

to Rule 12(b)(6), Federal Rules of Civil Procedure (Rule(s)). Plaintiff James

Crosby, acting pro se, filed a response in opposition to the Motion on April 27,

2022. See Traverse and Dumur [sic] of Motion to Dismiss by City of Jacksonville

and Memorandum of Law (Doc. 63; Response). Accordingly, this matter is ripe

for review.1

1 On December 14, 2022, Crosby filed a Motion to Reconsider Denial Without Prejudice

Relief from Judgment and Other Orders and Demand for Disqualification Pursuant to Federal

Law (Doc.115; Motion for Reconsideration). To the extent Crosby asks this Court to reconsider

its December 5, 2022 Order (Doc. 113) denying his request that the undersign recuse herself

I. Standard of Review

In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the

Court must accept the factual allegations set forth in the complaint as true. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534

U.S. 506, 508, n.1 (2002); see also Lotierzo v. Woman's World Med. Ctr., Inc.,

278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences

should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701,

705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal

pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1262–

63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not

necessary,” the complaint should “‘give the defendant fair notice of what the . .

. claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S.

89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)). Further, the plaintiff must allege “enough facts to state a claim to

relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court

from this action, the Motion is due to be denied. For the reasons stated in the prior Order,

there is no basis for recusal and as such, the undersigned is obligated to continue presiding

over this matter. See December 5, 2022 Order at 2-6. To the extent Crosby asks the Court to

reconsider various other aspects of the December 5, 2022 Order, his request will be denied as

moot because, for the reasons that follow, the Court finds that the Third Amended Complaint

is due to be dismissed in its entirety.

2

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

alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

A “plaintiff's obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations

omitted); see also Jackson, 372 F.3d at 1262 (explaining that “conclusory

allegations, unwarranted deductions of facts or legal conclusions masquerading

as facts will not prevent dismissal” (citations and quotations omitted)). Indeed,

“the tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions,” which simply “are not entitled to

[an] assumption of truth.” Iqbal, 556 U.S. at 678-79. Thus, in ruling on a motion

to dismiss, the Court must determine whether the complaint contains “sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Id. at 678 (quoting Twombly, 550 U.S. at 570).

Determining whether a complaint states a plausible claim for relief is “a

context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679. Moreover, when the

well-pleaded facts do not permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged—but it has not “show[n]”—“that the

pleader is entitled to relief.” Id. (citation omitted). And, while “[p]ro se

3

pleadings are held to a less stringent standard than pleadings drafted by

attorneys and will, therefore, be liberally construed,” Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998), “‘this leniency does not give the

court a license to serve as de facto counsel for a party or to rewrite an otherwise

deficient pleading in order to sustain an action.’” Alford v. Consol. Gov’t of

Columbus, Ga., 438 F. App’x 837, 839 (11th Cir. 2011)2 (quoting GJR Invs., Inc.

v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal

citation omitted), overruled in part on other grounds as recognized in Randall,

610 F.3d at 706); see also Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69

(11th Cir. 2014).

II. Procedural History

Crosby initiated this action, pro se, on January 19, 2022. See Certified

Complaint (Doc. 1). On January 21, 2022, the Court entered an Order (Doc. 6)

striking the Complaint and providing Crosby with the opportunity to file an

amended complaint. See Order at 4-7, 10-11. In the Order, the Court explained

the pleading requirements applicable in federal court, including that a

complaint must set forth a short and plain statement of the claim showing that

2 The Court does not rely on unpublished opinions as binding precedent; however, they

may be cited in this Order when the Court finds them persuasive on a particular point. See

McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App. P.

32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but they

may be cited as persuasive authority.”).

4

the pleader is entitled to relief, and state each claim discretely and succinctly

without reliance on vague and ambiguous allegations. Id. at 2-3. In addition,

the Court discussed the Eleventh Circuit’s prohibition on shotgun pleadings. Id.

at 3-4.

The Court found that the Complaint constituted an impermissible

shotgun pleading because Crosby improperly reincorporated all allegations of

all preceding counts into each successive count of his fourteen-count Complaint.

As a result, the Court faced “the onerous task of sifting out irrelevancies in order

to decide for itself which facts are relevant to a particular cause of action

asserted.” Id. at 5. In addition, the Complaint was “‘replete with conclusory,

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

action.’” Id. at 5-6 (quoting Weiland v. Palm Beach Cnty. Sheriff’s Office, 792

F.3d 1313, 1322 (11th Cir. 2015)). Indeed, Crosby’s Complaint spanned thirty-

nine pages, with nearly 200 paragraphs of allegations. Id. at 6. The Court

observed that:

[w]hile long on allegations of conspiracy and wrongdoing, the

Complaint is short on substance such that the Court is left to wade

through pages of conclusory accusations in search of a coherent set

of facts. Plaintiff’s allegations also lack dates, timeframes, or any

discernible chronology, making it impossible to follow the series of

events that led to this lawsuit. Moreover, given the shotgun

reincorporation of all allegations, the Court cannot determine

which facts make up which causes of action much less what

Plaintiff’s specific claims are as to each Defendant.

5

See id.

The Court directed Crosby to file an amended complaint and explained

that he must “avoid the shotgun pleading deficiencies set forth above and

describe in sufficient detail the factual basis for each of his claims and how each

Defendant is responsible.” Id. at 6-7. Less than thirty minutes after entry of

the Court’s Order, the Clerk’s Office docketed a motion from Crosby for leave to

amend the complaint. See Motion Requesting Leave to Amend Complaint (Doc.

7). And, a few days later, Crosby filed his amended complaint. See Certified

Complaint (Doc. 9; Amended Complaint), filed February 1, 2022. Upon review

of the docket, the Magistrate Judge entered an order denying Crosby’s motion

for leave to amend and observed that Crosby appeared to have filed the

Amended Complaint “before being notified of the Court’s order striking his

[original] complaint . . . .” See Order Denying Motion to Amend as Moot (Doc.

10) at 1. As such, the Magistrate Judge struck the Amended Complaint and

directed Crosby to file a second amended complaint which complied with the

Court’s January 21, 2022 Order. Id. at 2. Crosby filed a second amended

complaint on February 4, 2022. See Verified Complaint and Demand for Jury

Trial (Doc. 12; Second Amended Complaint). Ten days later, Crosby sought

leave to file a third amended complaint. See Motion Requesting Leave to Amend

6

Complaint (Doc. 17), filed February 14, 2022. The Magistrate Judge granted

Crosby’s request, see Order (Doc. 22), and on March 28, 2022, Crosby filed his

third amended complaint, which is the operative pleading at this time. See

Verified Complaint and Demand for Jury Trial (Doc. 23; Third Amended

Complaint or TAC).3

The Third Amended Complaint is thirty-two pages long with ninety-three

paragraphs and three counts. Crosby names six Defendants—the State of

Florida (the State), the City, Chancey Metal Products, All State Steel, Shawn

Fitzgerald, and Mark Jones. At this time, the City and the State are the only

Defendants remaining in this action. See Minute Entry (Doc. 74); Order (Doc.

96); Order (Doc. 97). Although Crosby does appear to have corrected his more

egregious pleading errors, the Third Amended Complaint remains replete with

vague allegations and conclusory assertions of wrongdoing. Indeed, Crosby’s

allegations are difficult to follow and largely premised on his unsupported

inference that the people around him are all secretly acting on behalf of the

government. In addition, Crosby’s allegations of wrongdoing rely heavily on his

conclusory assertion that the actions of others are “illegal.” As explained above,

3 The Court notes that from the outset of this case Crosby has filed numerous

miscellaneous motions, including several motions seeking emergency injunctive relief which

the Court has denied. See, e.g., Order (Doc. 6); Order (Doc. 15); Order (Doc. 25); Order (Doc.

66); Minute Entry (Doc. 74). In the interest of brevity, the Court does not recount this portion

of the extensive procedural history.

7

such allegations are not entitled to an assumption of truth. See Iqbal, 556 U.S.

at 681 (“It is the conclusory nature of respondent’s allegations, rather than their

extravagantly fanciful nature, that disentitles them to the presumption of

truth.”). Nevertheless, as best the Court can discern, Crosby’s factual

allegations are as follows.

III. Factual Background4

Generally, Crosby contends that the State and the City, at the direction

of the federal government, have engaged in a long-running, wide-ranging

conspiracy to frame men as child predators. Crosby’s allegations regarding the

“illegal tactics” being used as part of this conspiracy are largely too vague to be

comprehensible, but generally, he appears to contend that the government is

using adult websites to “frame” men for soliciting minors. See TAC ¶¶ 20, 22-

23. He connects this conspiracy to his 2007 arrest on a sex offense, his

4 As stated above, in considering the City’s Motion, “the court reviews a plaintiff’s pro

se allegations in a liberal fashion, accepts all factual allegations in the complaint as true, and

evaluates all reasonable inferences derived from those facts in the light most favorable to the

plaintiff.” See Freeman v. Fine, 820 F. App’x 836, 838 (11th Cir. 2020). As such, the facts

recited here are drawn from the Third Amended Complaint and may well differ from those

that ultimately could be proved.

The Court also notes that in his Response, Crosby frequently refers to “evidence” on a

CD that he filed with the Court. See, e.g., Response at 3. However, “‘[a] court is generally

limited to reviewing what is within the four corners of the complaint on a motion to dismiss.’”

See Bruce v. U.S. Bank Nat’l Assoc., 770 F. App’x 960, 964 (11th Cir. 2019) (quoting Bickley v.

Caremark RX, Inc., 461 F.3d 1325, 1329 n.7 (11th Cir. 2006)). Although there are some

exceptions to this principle, id., Crosby fails to identify any basis for the Court to consider his

evidence at this stage in the proceedings. Regardless, the Court has reviewed the documents

on the CD and they do not change the outcome of this Order.

8

conviction, and the 2015 denial of his petition for writ of habeas corpus relief in

federal court. See id. ¶¶ 20-21, 28-30; see also Motion, Ex. A.5 Following his

conviction, Crosby maintains that he “started a non-profit organization called

‘Florida Scandal’ (FS) in 2011 to prove that he was framed as a child predator

by the federal government in violation of his constitutional rights.” See TAC ¶

16. Through this organization, Crosby alleges that he has “proven that the

states are framing men as child predators for money . . . .” Id. Now, Crosby

contends that the State is retaliating against him for “expos[ing] the

conspiracy,” id. ¶ 19, and that the State and federal government are using “the

power of office to protect the conspiracy uncovered by [Crosby] . . . .” Id. ¶ 17.

Crosby also alleges that the Jacksonville Sheriff’s Office (JSO) has been

“stalking, harassing, and investigating” him due to his involvement with FS,

leading to his arrest in October of 2018 for failure to register. Id. ¶¶ 31-32; see

Motion, Ex. B. Although unclear, it appears Crosby served a term of home

confinement as a result of that charge. See TAC ¶ 37.

Significantly, Crosby alleges that he has for years engaged in his own

“stings” on law enforcement in an effort “to sabotage their illegal stings and

5 At the City’s request, the Court takes judicial notice of the docket sheets in two state

criminal cases against Crosby. See Motion at 12 n.1, Exs. A-B; U.S. ex rel. Osheroff v. Humana

Inc., 776 F.3d 805, 811 n.4 (11th Cir. 2015) (“Courts may take judicial notice of publicly filed

documents, such as those in state court litigation, at the Rule 12(b)(6) stage.”); see also Fed. R.

Evid. 201.

9

obtain evidence of their modis [sic] operandi being [sic] to frame men to make

money.” Id. ¶ 25. As relevant to this action, Crosby alleges that in November

of 2018, he “came into contact with what he believed to be an undercover officer

performing another sting on an anonymous chat room.” Id. ¶ 34. According to

Crosby, he “was mocking the officer and taunting him or her who was

pretending to be a 12-year-old and he sent a picture of his genitals mocking the

illegal tactics used during stings.” Id. Crosby appears to view this incident as

his own “sting” on law enforcement, but he acknowledges that he “went too far

in this one . . . .” Id. ¶¶ 25, 34, 35, 37, 56. In connection with this incident,

Crosby contends that JSO has been working with his neighbors, employers, bus

drivers, and “dozens of average citizens” to “illegally” investigate and arrest

him. Id. ¶¶ 36, 37, 39-42, 46-56. Crosby alleges that law enforcement has been

following him everywhere, id. ¶ 48, tapping his phone, id. ¶¶ 39-41, and

infiltrating his places of employment to turn his employers and coworkers

against him, id. ¶¶ 42, 46. According to Crosby, the State and the City “know

he is innocent of the falsely alleged criminal act [the 2018 explicit photo] but are

trying to maliciously prosecute him to cover up the . . . conspiracy [to frame men

as child predators] and out of revenge for [Crosby] framing the government . . .

.” Id. ¶ 56. However, there are no allegations that Crosby has ever been arrested

or charged with any crime in connection with this incident.

10

Based on the foregoing, in Count One, Crosby asserts a claim under 42

U.S.C. § 1983 against the State and the City. See TAC at 13. He titles this

Count “Discriminatory Enforcement of Vague/Overbroad Statutes and Using

Illegal Investigative Tactics Under 42 U.S.C. § 1983.” Id. In Count Two, Crosby

brings a claim against those same Defendants for “Racketeering Activities

under 18 U.S.C. § 1964 & 42 U.S.C. § 1983.” Id. at 18. Last, in Count Three,

Crosby raises a claim for “Conspiracy to Deprive Rights 42 U.S.C. § 1983 and 18

U.S.C. § 241 & § 242” against all Defendants. Id. at 21. As to each Count,

Crosby demands compensatory and punitive damages. Id. at 18, 20-22, 29-30.

At the conclusion of the Third Amended Complaint, Crosby also demands

“injunctions to stop his unconstitutional sex offender registration and the illegal

investigation still being performed . . . .” Id. at 31-32. He also maintains that

“it is required and necessary to relieve [Crosby] from the previous order illegally

denying him federal habeas relief through a writ of error coram nobis or any

other writ under the All Writs Act . . . .” Id. at 32.

IV. Discussion

Despite concerted effort, the Court finds it difficult to discern the specific

nature of Crosby’s claims, much less which facts are intended to support which

particular claims. The wide-ranging scope of Crosby’s allegations,

encompassing prior convictions in 2007 and 2018, combined with conclusory

11

assertions of wrongdoing and only vague allegations of fact, make it nearly

impossible to identify the specific theories of relief on which Crosby intends to

rely. Confusing the matter further, Crosby appears to combine distinct claims

within a single count—such as in Count One where Crosby raises claims for

“discriminatory enforcement of vague/overbroad statutes” and the use of “illegal

investigative tactics.” See TAC at 13. As such, the City’s assertion that the

Third Amended Complaint remains an impermissible shotgun pleading and

should be dismissed on this basis is not without some merit. See Motion at 4-7;

see also Gilbert v. City of Pine Lake, Ga., No. 19-12585, 2022 WL 1162087, at

*4 (11th Cir. Apr. 20, 2022) (affirming dismissal as a shotgun pleading, inter

alia, where complaint “contained scattered accusations, making it uncertain,

even when liberally construed, what his claims were, and to whom they

pertained”). Nevertheless, given Crosby’s meaningful efforts to correct his

pleading deficiencies and the leniency shown to pro se pleadings, the Court will

endeavor to consider the substance of his claims.

12

A. Count Two: Racketeering Activities Under 18 U.S.C. § 1964 and

42 U.S.C. § 19836

The Court finds it helpful to begin with Count Two. In this Count, Crosby

asserts a claim pursuant to the Racketeer Influenced and Corrupt

Organizations (RICO) Act, 18 U.S.C. § 1964. Crosby alleges a racketeering

scheme between the State and the City “that has existed since at least 2006 with

just the state governments and since at least 2003 between the government and

an illegal television program called [To Catch a Predator.]” See TAC ¶ 60. As

described above, the scheme involves illegally framing men as child predators.

Id. ¶ 62. Significantly, Crosby alleges that he “is only a sex offender because he

was framed by this racket and can’t get out of it because of the racket.” Id. ¶ 65.

Crosby’s RICO claim fails for several reasons.

A private plaintiff asserting a civil RICO claim must plausibly allege 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.” See Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020).

Crosby’s allegations, as summarized above, are wholly insufficient to establish

6 It is unclear what claim Crosby intends to assert by invoking § 1983 here. Regardless,

any § 1983 claim encompassed by the racketeering allegations set forth in Count Two is barred

by Heck v. Humphrey, 512 U.S. 477, 487 (1994) for the same reasons discussed below.

13

these elements. However, a detailed discussion of the insufficiencies is not

necessary as Crosby’s RICO claim must fail regardless because it is barred by

the rule set forth in Heck v. Humphrey, 512 U.S. 477, 487 (1994).7

Generally, Heck “bars any challenges to a previous conviction unless the

conviction ‘has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such a determination,

or called into question by a federal court’s issuance of a writ of habeas corpus.’”

See Reilly v. Herrera, 622 F. App’x 832, 833-34 (11th Cir. 2015).8 Although the

ruling in Heck concerned § 1983 claims, “a number of other courts have held

that the Heck rule applies with equal force to civil RICO claims” and the Court

finds the reasoning of these cases persuasive. See Harrison v. Grand Jurors,

7 One notable deficiency is that Crosby fails to allege an injury to his business or

property. To the extent he describes his injuries at all, Crosby alleges damages that are

personal in nature. See TAC ¶ 93 (alleging that he has “suffered from extreme anxiety, mental

stress, torment, treachery, relationship problems, anquish [sic], fear, and loss of liberty and

freedom”). Such injuries cannot form the basis for a civil RICO action. See Dysart v.

BankTrust, 516 F. App’x 861, 864 (11th Cir. 2013); see also Grogan v. Platt, 835 F.2d 844, 847-

48 (11th Cir. 1988).

8 The Court acknowledges that the law is unsettled on whether an exception to the Heck

bar could apply in cases where the plaintiff is not in custody such that habeas relief is

unavailable. See Reilly, 622 F. App’x at 834; see also Topa v. Melendez, 739 F. App’x 516, 519

n.2 (11th Cir. 2018). But this exception, to the extent it exists, would not apply to Crosby.

Although he does not appear to be in custody at this time, he previously had the opportunity

to, and in fact did, pursue habeas relief with respect to his 2007 conviction. See Crosby v.

Sec’y, Dep’t of Corr., No. 8:14-cv-1654-VMC-AEP, Doc. 49 (M.D. Fla. Jan. 23, 2015) (order

denying petition as time-barred). Thus, Crosby does not fit within the parameters of whatever

exception may exist for individuals who did not have the ability to pursue habeas relief. See

Reilly, 622 F. App’x at 834-35; see also Baker v. City of Hollywood, No. 08-60294-CIV, 2008

WL 2474665, at *6-7 (S.D. Fla. June 17, 2008) aff’d 391 F. App’x 819, 821 (11th Cir. 2010).

14

No. 3:05CV348/MCR/MD, 2006 WL 354218, at *2 (N.D. Fla. Feb. 13, 2006)

(collecting cases); see also Swan v. Barbadoro, 520 F.3d 24, 26 (1st Cir. 2008)

(“Heck’s bar cannot be circumvented by substituting a supposed RICO action for

the earlier Bivens claims ineffectually designed for the same purpose.”).

Here, Crosby plainly seeks to undermine the validity of his conviction

through his RICO claim as he alleges that his arrest and conviction were the

result of a racketeering scheme designed to frame men, including him, as “child

predators.” See Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994) (finding that

plaintiff’s lawsuit implicated his conviction where he alleged that “law

enforcement officials violated his constitutional rights when they were

investigating him; . . . his court-appointed counsel rendered ineffective

assistance; the district court illegally indicted and sentenced him; and all of the

named defendants conspired to violate his constitutional rights, obstruct justice,

commit mail fraud, common-law fraud, violate RICO, and engage in ‘out law

[sic] conduct’”). Indeed, part of the relief Crosby seeks in this action is a writ

“vacat[ing] the illegal order denying federal habeas relief . . . .” See TAC ¶¶ 1,

93. Thus, to proceed with this lawsuit Crosby must satisfy Heck’s favorable

termination requirement. Crosby does not allege that his 2007 criminal

conviction has been overturned or called into question. To the contrary, Crosby

asserts that his request for habeas relief was denied in 2015. See TAC ¶¶ 14,

15

21. Accordingly, the Heck bar governs, and the RICO claim is due to be

dismissed without prejudice. See Petersen v. Overstreet, 819 F. App’x 778, 779

(11th Cir. 2020) (“[C]ases barred by Heck . . . are typically dismissed without

prejudice . . . .”).9

B. Counts One and Three

Next, the Court addresses Crosby’s § 1983 claims in Counts One and

Three. In Count One, Crosby asserts a § 1983 claim premised on the use of

“illegal investigative tactics.”10 In Count Three, Crosby raises a related § 1983

conspiracy claim.11 “In order to prevail on a civil rights action under § 1983, a

9 Even absent Heck, Crosby’s RICO claim against the State and the City would likely

fail as it appears that governmental entities are not proper defendants to a civil RICO claim.

See Gil Ramirez Grp., L.L.C. v. Houston Independent Sch. Dist., 786 F.3d 400, 411-13 (5th Cir.

2015) (holding that governmental entities are not proper RICO defendants); see also Topping

v. Cohen, No. 2:14-cv-146-FtM-29DNF, 2015 WL 2383630, at *12 n.12 (M.D. Fla. May 19, 2015)

(collecting cases).

10 The Court notes that the title of Count One and two allegations therein reference the

“discriminatory enforcement of vague/overbroad statutes.” See TAC ¶¶ 48, 52. Crosby’s

allegations in this regard are so conclusory that the Court is unable to discern the basis for

any claim premised on discrimination, vagueness, or overbreadth. Indeed, it is altogether

unclear what statute Crosby challenges, much less what aspect of the statute Crosby contends

is vague, or in what manner the statute is overbroad. The Court also cannot identify the

grounds on which Crosby claims that the investigation against him is discriminatory. As such,

the Court’s analysis of Count One focuses on Crosby’s challenge to the City’s investigatory

tactics.

11 Crosby also invokes 18 U.S.C. § 241 and § 242 in Count Three. Id. at 21. However,

these are criminal statutes that do not provide a private right of action in a civil lawsuit. See

Bunck v. King, No. 2:10-cv-735-FtM-36DNF, 2011 WL 13137378, at *3 (M.D. Fla. Sept. 8,

2011); see also Crosby v. Catret, 308 F. App’x 453, at **1 (D.C. Cir. 2009) (“The district court

properly rejected appellant's attempt to invoke 18 U.S.C. § 241 and 18 U.S.C. § 242 to initiate

16

plaintiff must show that he or she was deprived of a federal right by a person

acting under the color of state law.” See Griffin v. City of Opa-Locka, 261 F.3d

1295, 1303 (11th Cir. 2001). With respect to a claim for conspiracy under § 1983,

a plaintiff “must allege that (1) the defendants reached an understanding or

agreement that they would deny the plaintiff one of his constitutional rights;

and (2) the conspiracy resulted in an actual denial of one of his constitutional

rights.” Weiland, 792 F.3d at 1327; see also Worthy v. City of Phenix City, Ala.,

930 F.3d 1206, 1224 (11th Cir. 2019).

Although vague, the crux of Crosby’s allegations in Count One appears to

be that the City and the State are engaging in unreasonable warrantless

searches. For example, Crosby alleges that the City placed wiretaps on his

phones and those of his acquaintances without a warrant, “infiltrated” his place

of employment to “coerce [his] coworkers . . . to be involved in a warrantless and

illegal search of Plaintiff’s belongings,” and “illegally” tracked his movements.

See, e.g., TAC ¶¶ 39, 42, 46, 48. As such, although not specified, Crosby appears

to be alleging violations of his Fourth Amendment rights. See Gennusa v.

Canova, 748 F.3d 1103, 1109-10 (11th Cir. 2014) (“The Fourth Amendment, as

a prosecution against the named defendants because there is no private right of action under

these criminal statutes.”).

17

applied to the states by way of the Fourteenth Amendment, protects ‘[t]he right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.’” (quoting U.S. Const. amend. IV) (internal

citation omitted)).

As to the claim for conspiracy, Crosby asserts that beginning sometime in

2019, his neighbor Shawn Fitzgerald initiated the conspiracy with the City and

the State so that Fitzgerald could take Crosby’s house. See TAC ¶¶ 69, 73.

Crosby’s former employers were also allegedly members of the conspiracy.

Generally, the conspiracy involved surveilling Crosby, tracking his movements,

and surreptitiously providing information to law enforcement. It appears the

object of the alleged conspiracy was to have Crosby “illegally” arrested for

Crosby’s conduct in November of 2018, detailed above. See TAC ¶¶ 34-35, 70,

73, 75, 77.12

12 The Court notes that while some of the allegations in these Counts appear to relate

to Crosby’s previous criminal convictions in state court, see TAC ¶¶ 39, 44-45, the majority of

the allegations pertain to more recent events, see, e.g., id. ¶¶ 46-55, 69, 73, 75, 81. As such,

the Court construes these claims as pertaining to allegedly improper investigatory practices

unconnected to any previous criminal proceedings. To the extent the City argues that the

Court should abstain from considering Crosby’s claims challenging “any ongoing investigation”

pursuant to Younger v. Harris, 401 U.S. 37 (1971), see Motion at 9-10, this argument is

unavailing. The City has not identified any currently pending state criminal proceedings

against Crosby. See For Your Eyes Alone, Inc. v. City of Columbus, Ga., 281 F.3d 1209, 1217-

20 (11th Cir. 2002).

18

Significantly, Crosby does not assert his claims in Count One or Three

against the particular City officials who allegedly engaged in the unreasonable

searches or conspiracy, rather, Crosby brings his § 1983 claims against the City

itself. A municipality may be liable in a § 1983 action “only where the

municipality itself causes the constitutional violation at issue.” Cook ex. rel.

Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1115 (11th Cir.

2005) (citations omitted). Thus, a plaintiff must establish that an official policy

or custom of the municipality was the “moving force” behind the alleged

constitutional deprivation. See Monell v. Dep’t of Social Servs. of City of N.Y.,

436 U.S. 658, 693-94 (1978). This principle applies with equal force in § 1983

conspiracy claims. See Weiland, 792 F.3d at 1330.

“A policy is a decision that is officially adopted by the municipality, or

created by an official of such rank that he or she could be said to be acting on

behalf of the municipality.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489

(11th Cir. 1997) (citation omitted). The policy requirement is designed to

“‘distinguish acts of the municipality from acts of employees of the municipality,

and thereby make clear that municipal liability is limited to action for which

the municipality is actually responsible.’” Grech v. Clayton Cnty., Ga., 335 F.3d

1326, 1329 n.5 (11th Cir. 2003) (en banc) (quotation omitted). Indeed, municipal

liability arises under § 1983 only where “‘a deliberate choice to follow a course

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of action is made from among various alternatives’ by city policymakers.” City

of Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur v. Cincinnati,

475 U.S. 469, 483-84 (1986)). A municipality will rarely have an officially-

adopted policy that permits a particular constitutional violation, therefore, in

order to state a cause of action for damages under § 1983, most plaintiffs must

demonstrate that the municipality has a custom or practice of permitting the

violation. See Grech, 335 F.3d at 1330; McDowell v. Brown, 392 F.3d 1283, 1289

(11th Cir. 2004).13 The Eleventh Circuit has defined “custom” as “a practice that

is so settled and permanent that it takes on the force of law” or a “persistent

and wide-spread practice.” Sewell, 117 F.3d at 489.

Upon review, the Court finds that the Third Amended Complaint is devoid

of allegations sufficient to establish municipal liability as to Count One or Count

Three. Crosby does not allege that the purportedly illegal investigatory tactics

are the result of an official City policy or widespread custom of engaging in

warrantless wiretaps or searches. And Crosby’s conclusory allegations of

conspiracy are insufficient to plausibly allege the existence of any agreement to

violate his civil rights, much less one premised on an official City policy or

13 Crosby does not allege that any City official acting with final policymaking authority

was involved in the alleged wrongdoing, nor does Crosby include any allegations that could be

construed as raising a failure to train as the basis for his theory of municipal liability.

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custom. Only one paragraph of Count One refers to the existence of a “proven

pattern and practice of official misconduct and judicial corruption in this

district,” see TAC ¶ 56, but this conclusory allegation alone is altogether

insufficient. Indeed, it is unclear what Crosby means by this statement or to

what misconduct he refers. Notably, Crosby does not allege that the “illegal”

investigatory practices regarding warrantless searches, tracking devices, and

unauthorized wiretaps have been applied to others, nor does he explain how or

why the City would have had notice of the purported illegal investigatory

practices being used against him.

Most problematically, with respect to both claims, Crosby provides almost

no factual allegations demonstrating the City’s actual involvement in the

conduct about which he complains. He fails to identify a single City actor by

name or description. Instead, he infers without support that everyone around

him is either an undercover officer or secretly acting on behalf of the City. But

Crosby does not provide any facts demonstrating how he determined that these

otherwise anonymous individuals were undercover officers, or that his

neighbors’ otherwise unremarkable actions were orchestrated by the City as

part of a plot against him. As pled, the Court cannot determine whether the

allegations involve the actions of one or several different law enforcement

officers, or whether law enforcement officers are involved at all.

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In sum, Crosby fails to allege sufficient facts to give rise to a plausible

inference that individuals acting on behalf of the City are illegally investigating

him, much less that they are doing so pursuant to an official City policy or

widespread custom. And similarly, setting aside Crosby’s unsupported legal

conclusions and allegations too vague to be given weight, the factual allegations

in the Third Amended Complaint are wholly insufficient to demonstrate that

the City, pursuant to a policy or custom, reached an understanding with anyone

to violate Crosby’s civil rights. As such, Counts One and Three are due to be

dismissed.

C. State of Florida

Having determined that the claims against the City are due to be

dismissed, the sole remaining Defendant in this action is the State. Upon

review of the docket, the Court notes that the State appeared in this action on

May 11, 2022, see Notice of Appearance of Counsel (Doc. 75), but to date, has

not filed a response to the Third Amended Complaint. As such, Crosby was

required to apply for default under the Local Rules of this Court. See Local Rule

1.10(b), United States District Court, Middle District of Florida (Local Rule(s)).

He has failed to do so. Accordingly, pursuant to Local Rule 1.10(c), Crosby’s

claims against the State are due to be dismissed without prejudice. See Local

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Rule 1.10(c) (“Failure to comply with a deadline in this rule can result in

dismissal of the claim or action without notice and without prejudice.”).

In this instance, however, the Court finds it appropriate to dismiss Counts

One and Three with prejudice as Crosby’s § 1983 claims against the State are

futile. See Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1335-37 (11th Cir. 2011);

Woodroffe v. Fla. Dep’t of Fin. Servs., 774 F. App’x 553, 555 (11th Cir. 2019).

The State of Florida is not subject to suit under § 1983. See Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 64 (1989) (“[A] State is not a person within the

meaning of § 1983.”).

Accordingly, it is

ORDERED:

1. Plaintiff’s Motion to Reconsider Denial Without Prejudice Relief From

Judgment and Other Orders and Demand for Disqualification

Pursuant to Federal Law (Doc. 115) is DENIED as to his request for

recusal, and otherwise DENIED as moot.

2. Defendant City of Jacksonville’s Motion to Dismiss Third Amended

Complaint with Prejudice and Supporting Memorandum of Law (Doc.

53) is GRANTED to the extent set forth in this Order.

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3. Count Two of the Third Amended Complaint (Doc. 23) is DISMISSED

without prejudice. Counts One and Three of the Third Amended

Complaint are DISMISSED.

4. The Clerk of the Court is directed to enter judgment, terminate all

pending motions, and close the file.

DONE AND ORDERED in Jacksonville, Florida, this 8th day of March,

2023.

United States District Judge

Ie11

Copies to:

Counsel of Record

Pro Se Parties

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