Baptiste v. Bourland

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case Number: 21-22159-CIV-MARTINEZ/BECERRA

VENIT JEAN BAPTISTE,

Plaintiff, □

V.

VICTORIA BOURLAND, etal,

Defendants.

□

ORDER ADOPTING REPORT AND RECOMMENDATION

THIS MATTER was referred to the Honorable Jacqueline Becerra for all pretrial

proceedings. (See ECF No. 6). Magistrate Judge Becerra issued a report and recommendation

(“R&R”) on Plaintiff’s Application for Leave to Proceed in forma pauperis (“IEP Motion”), (ECF

No. 3), and Motion for Referral to Volunteer Attorney Program (“Motion for Referral’), (ECF No.

5). (ECF No. 7). Pursuant to 28 U.S.C. § 1915(e), Judge Becerra recommended that (1) Plaintiffs

complaint be dismissed without prejudice for failure to state a claim; (2) the IFP Motion be denied

as moot; and (3) the Motion for Referral be denied. (ECF No. 7). Plaintiff timely filed objections

to the R&R. (ECF No. 8). The Court has conducted a de novo review of the issues presented by

the Plaintiffs Objections.

The R&R recommends dismissing the complaint for failure to state a claim. Judge Becerra

found that Plaintiff’s complaint fails to provide “sufficient factual matter’ to allow the Court to

reasonably infer what the claim or claims for relief against Defendants may be.” (ECF No. 7 at

3). In addition, Plaintiffs complaint contains bare and conclusory allegations and does not identify

what actions Defendants took that could form the basis for any theory of liability. Ud). The R&R

further finds that as pled, the Court is unable to discern whether Plaintiff is bringing a claim on

behalf of herself or her minor child. (/d. at 4). The Court agrees with this finding in its entirety.

While Plaintiff’s objections provide more factual background, Plaintiff cannot amend her

complaint through her Objections to the R&R. See Gilmour v. Gates, McDonald and Co., 382

F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may not amend her complaint through argument in

a brief opposing summary judgment’); Morgan v. Dick’s Sporting Goods, Inc., 359 F. Supp. 3d

1283, 1292 n.4 (N.D. Ga. 2019) (“A plaintiff cannot amend the complaint by arguments of counsel

made in opposition to a motion to dismiss.”). The proper procedure is to file an amended complaint

that complies with Rule 8. As such, even granting Plaintiff the liberal construction afforded to pro

se litigants, the Court cannot infer within Plaintiff's narrative any claim for relief against any of

the Defendants named in the Complaint. See Wright v. Miranda, 740 F. App’x 692, 694 (11th Cir.

2018) (pro se complaints still must contain “some factual support for a claim”). As such, the

Complaint must be dismissed.

Given Plaintiffs Objections, the Court will allow her to file an amended complaint. Should

Plaintiff wish to file an amended complaint, it must comply with the Federal Rules of Civil

Procedure and the Local Rules of the Southern District of Florida. First, Plaintiff must separate

each cause of action against each Defendant into a different count. Further, pursuant to Fed. R.

Civ. P. 10(b), the amended complaint must state the claims “in numbered paragraphs, each limited

as far as practicable to a single set of circumstances.” To promote clarity, “each claim founded on

a separate transaction or occurrence .. . must be stated in a separate count|.]” Fed. R. Civ. P. 10(b).~

Plaintiff must clearly write the name of each Defendant who is a party to this action and specify

which Defendant is responsible for each act or omission that forms the basis of her claims. See

Weiland v. Palm Beach Cnty. Sheriff's Off, 792 F.3d 1313, 1323 (11th Cir: 2015).

The amended complaint must also comply with Fed. R. Civ. P. 8(a). See Moon v.

Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Rule 8(a) provides that a pleading which states a

claim for relief must contain: :

(1) a short and plain statement of the grounds for the court’s

jurisdiction, unless the court already has jurisdiction and the

claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader

is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the

alternative or different types of relief.

Fed. R. Civ. P. 8(a). Moreover, to the extent Plaintiff attempts to bring a civil rights claim against

Defendants, the Court notes that the Eleventh Circuit has tightened the application of Rule 8 with

respect to these cases, in an effort to identify meritless claims. See GJR Investments v. Cty of

Escambia, Fla., 132 F.3d 1359, 1367 (11th Cir. 1998) (“Some factual deiail in the pleadings is

necessary to the adjudication of § 1983 claims.”). Accordingly, a civil rights plaintiff must allege

with specificity the facts which make out her claim. See Wilson v. Strong. 156 F.3d 1131, 1134

(11th Cir. 1998) (“[T]he contours of an asserted constitutional right ‘must be sufficiently clear that

a reasonable official would understand that what he is doing violates that right.’”) (citation

omitted). Factual detail in the pleadings is particularly necessary in cases involving qualified

immunity, where the Court must determine whether a defendant’s actions violated a clearly

established right, GJR Investments, 132 F.3d at 1367.

For the foregoing reasons, it is hereby:

ADJUDGED that United States Magistrate Judge Becerra’s Report and Recommendations

(ECF No. 7) is AFFIRMED and ADOPTED in its entirety. Accordingly, it is:

ADJUDGED that: .

1. Plaintiff's complaint, (ECF No. 1), is DISMISSED without prejudice. Plaintiff

may file an amended complaint no Jater than March 21, 20222. Failure to do so shall result in

- the Court closing this case.

2. Plaintiffs IFP Motion, (ECF No. 3), is DENIED as moot. |

3. Plaintiff's Motion for Referral, (ECF No. 5), is DENIED. _

DONE AND ORDERED in Chambers at Miami, Florida, this 4A day of March, 2022.

iM

JOSE E. TINEZ

Copies provided to: UNITED STATES DISTRICT JUDGE

Magistrate Judge Becerra

All Counsel of Record

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