Cooper-Levy v. City of Miami

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-21939-BLOOM/Otazo-Reyes

LATOYLA YASHEEN COOPER-LEVY.,

et al.,

Plaintiffs,

v.

CITY OF MIAMI,

Defendant.

___________________________________/

ORDER ON MOTION TO DISMISS

THIS CAUSE is before the Court upon Defendant City of Miami’s (“City”) Motion to

Dismiss, ECF No. [16] (the “Motion”). Plaintiffs Latoyla Cooper-Levy (“Cooper-Levy”), Phillip

Sylverin (“Sylverin”), Sherman Rivers (“Rivers”), and Joseph Simmons (“Simmons”), filed a

Response, ECF No. [17], to which the City filed a Reply, ECF No. [22]. The Court has carefully

reviewed the Motion, all supporting and opposing filings, the record in this case, the applicable

law, and is otherwise fully advised. For the reasons set forth below, the Motion is denied.

I. BACKGROUND

This case arises as a result of the City’s alleged violations of certain individuals’

constitutional rights. Plaintiffs, all of whom are homeless individuals, filed their Complaint

asserting two claims, pursuant to 42 U.SC. § 1983, for violating their Fourth and Fourteenth

Amendment rights. See generally ECF No. [1]. Plaintiffs allege that the City engages in a practice

and custom of unlawfully seizing and destroying personal property belonging to homeless

individuals like Plaintiffs by conducting sweeps of homeless encampments with insufficient

notice. Id.

This is not the first time the City of Miami has been sued for allegedly violating the Fourth

Amendment rights of homeless individuals. In 1992, Michael A. Pottinger, as representative of a

class of homeless persons, filed a lawsuit against the City of Miami under 42 U.S.C. § 1983,

alleging that the City’s police department had “a custom, practice and policy of arresting, harassing

and otherwise interfering with homeless people for engaging in basic activities of daily life . . . in

the public places where they are forced to live.” Pottinger v. City of Miami, 810 F. Supp. 1551,

1554 (S.D. Fla. 1992) (“Pottinger I”). The plaintiff in Pottinger sought to enjoin the City from

arresting homeless individuals engaging in “life-sustaining conduct” in public spaces and from

seizing or destroying their property in violation of the Fourth Amendment. See id. After the City

and police were found to have violated the rights of homeless individuals, the parties ultimately

reached a settlement and entered into a consent decree, which remained in effect from 1998 to

2019, and prohibited “the arrest of the homeless for being homeless and the seizure of their

property.” Pottinger v. City of Miami, 359 F. Supp. 3d 1177, 1179 (S.D. Fla. 2019) (“Pottinger

II”). Three years ago, in Pottinger II, the district court granted the City’s motion to terminate the

consent decree, and the decision was affirmed by the Eleventh Circuit. See id., aff’d sub nom.

Peery v. City of Miami, 977 F.3d 1061 (11th Cir. 2020).

Against this backdrop, the Complaint alleges that in 2019, the City adopted Administrative

Policy regarding the Treatment of Homeless Persons’ Property (APM-1-19), which “establish[ed]

a standard practice for the handling, temporary storage, and disposition of property belonging to

homeless persons.” ECF No. [1] at 17-21 (“Policy”). The Policy also requires City personnel to

“attempt to secure personal items such as identification, medicines, and eyeglasses and other small

items of importance . . . readily identifiable as intimate personal property.” Id. at 18, section I.1.

Even so, the Policy provides that homeless individuals’ property may be disposed of by the City

if the property is determined to be “contaminated” or otherwise poses a health or safety concern

to City personnel or members of the public. Id., section I.2.a.

According to the Complaint, in 2021, as a part of a continued effort to address

homelessness in Miami, the City drafted a “Street Clean up and Encampment Resource Plan” in

an attempt to facilitate the cleaning of homeless encampments by conducting ongoing “sweeps.”

ECF No. [1] ¶ 23. As Plaintiffs allege, City staff during these sweeps arrive at homeless

encampments with dump trucks and instruct homeless individuals to move their belongings before

the City removes and disposes of all remaining personal property at the encampment. Id. ¶ 31.

Plaintiffs further allege that the City does not sort the personal property or attempt to secure

important personal items before disposal. Id. ¶ 36.

According to the Complaint, the City conducted two such sweeps affecting Plaintiffs: the

first occurring in May, 2021 at NW 17th Street and 7th Avenue; and the second in August, 2021

under the bridge on NW 11th Street between NW 5th Avenue and NW 3rd Avenue. Id. ¶¶ 45-46,

59, 61, 70, 82. Each of the four Plaintiffs alleges that during these incidents, the City disposed of

personal property that was not abandoned or contaminated and failed to provide adequate notice

of when and where the City’s sweeps would occur. Id. ¶¶ 51, 66, 77, 87.

The incident in May, 2021 involved Cooper-Levy. The Complaint alleges that while away

from the encampment attending a job orientation, the City removed and disposed of her “U.S.

passport, birth certificate, Social Security card, identification, telephone, clothing, work uniform,

shoes, sleeping tent, and an urn containing her mother’s ashes.” Id. ¶ 52. Cooper-Levy alleges that

her personal property, was not abandoned, contaminated, and did not pose a health hazard or

safety issue. Id. ¶ 51. According to the Complaint, upon her return to the encampment, Cooper-

Levy discovered a notice left by the City under a brick which contained information about how to

retrieve stored property. Id. ¶ 54. However, upon following the instructions on the notice, City

staff told Cooper-Levy that they did not have any of her belongings. Id. ¶ 55. The City made no

attempt to save items that belonged to her, made no attempt to determine if her property was

contaminated or contained dangerous items, and made no offer to store her property. Instead, the

City irrevocably seized and destroyed her property. Id. ¶ 56.

The second incident alleged involves Simmons, Sylverin, and Rivers. Plaintiffs allege that

the City arrived to conduct a sweep on or about the morning of August 2. Id. ¶ 61. According to

the Complaint, City personnel arrived at the encampment around 9:00 a.m. with a crane and dump

truck, giving those present a few minutes to move their property before disposal. Id. ¶ 62. Sylverin

alleges that the City disposed of his property that was not abandoned or contaminated, including

his tent,1 identification, furniture, and family photos. Id. ¶ 64. Rivers and Simmons similarly allege

that the City disposed of their personal property that was not abandoned or contaminated, including

tents, identification documents, prescription medication, new clothing, a bike, toiletries, and sixty

dollars in change. Id. ¶ 76.

As a result, Plaintiffs seek damages, injunctive, and declaratory relief. In the Motion, the

City requests dismissal of the Complaint for failure to state a claim pursuant to Rule 12(b)(6) of

the Federal Rules of Civil of Procedure.

II. LEGAL STANDARD

A pleading must contain “a short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While a complaint “does not need detailed factual

allegations,” it must provide “more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);

1 Sylverin further alleges that his pet cat was inside the tent when a crane was used to load it into the dump

truck, presumably killing it. ECF No. [1] ¶ 64.

see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s pleading standard

“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a

complaint rest on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S.

at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the

plaintiff’s allegations as true and evaluate all possible inferences derived from those facts in favor

of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d

1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp.

2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts

“are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550

U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty. Sheriff’s Office, 449 F.3d

1342, 1352 (11th Cir. 2006).

III. DISCUSSION

In the Motion, the City urges the Court to take judicial notice of the procedure and relevant

facts in the Pottinger litigation. The City argues that the allegations in the Complaint are

insufficient to state a claim for municipal liability, that Plaintiffs lack standing for declaratory and

injunctive relief, and that declaratory and injunctive relief is improper. The Court considers each

argument in turn.

A. Relevance of Pottinger Litigation

As a preliminary matter, the Court considers the significance of Pottinger since the parties

devote a significant amount of the briefing to it. The City argues that the Court should take judicial

notice of facts arising out of the Pottinger litigation. Plaintiffs respond that Pottinger was factually

different from the allegations contained in Plaintiffs’ Complaint, and therefore Pottinger is not

relevant other than to provide context. The Court agrees.

Significantly, both parties agree that, irrespective of Pottinger, homeless individuals

remain entitled to “seek relief in an individual action” under § 1983 to vindicate violations of their

constitutional rights. Peery, 977 F.3d at 1072. In addition, neither party is claiming that Pottinger

is controlling; rather the City argues that the Court should take judicial notice of facts noted by the

Pottinger court that it deems to be relevant. However, as Plaintiffs correctly point out, the

Complaint is premised upon conduct occurring after the termination of the Pottinger consent

decree and its attendant litigation. Even if the Court were to grant the City’s request and take

judicial notice of the Pottinger facts, Pottinger is not binding or particularly helpful in resolving

the issues raised in the Motion. Accordingly, the Court turns to the merits of the Motion.

B. Municipal Liability Under Section 1983

In order to state a claim under 42 U.S.C. § 1983, a plaintiff must plead that he was (1)

deprived of a right; (2) secured by the Constitution or laws of the United States; and (3) that the

alleged deprivation was committed under color of state law. See Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 50 (1999); Rayburn v. Hogue, 241 F.3d 1341, 1348 (11th Cir. 2001). In

addition, a plaintiff that seeks to establish liability against a municipality must show that the

deprivation of his federal right was attributable to the enforcement of a municipal custom or policy.

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); Buckner v. Toro, 116 F.3d 450, 452

(11th Cir. 1997).

Importantly, a municipality is not liable under § 1983 on the basis of respondeat superior.

See Monell, 436 U.S. at 691; Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397,

403 (1997) (“a municipality may not be held liable under § 1983 solely because it employs a

tortfeasor.”). Instead, as explained by the Supreme Court, a municipality is only liable under

§ 1983 “when execution of a government’s policy or custom, whether made by its lawmakers or

by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that

the government as an entity is responsible under § 1983.” Monell, 436 U.S. at 694. This requires

that “a plaintiff seeking to impose liability on a municipality under § 1983 . . . identify a municipal

‘policy’ or ‘custom’ that caused the plaintiff's injury.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okla.,

520 U.S. at 403.

Indeed, “the requirement of a municipal policy or custom constitutes an essential element

of a § 1983 claim that a plaintiff must prove in order to establish municipal liability.” Buckner,

116 F.3d at 453; see Flowers v. Patrick, 869 F. Supp. 2d 1331, 1334-35 (M.D. Ala. 2012) (“a

plaintiff’s complaint against a municipality [must] ‘contain either direct or inferential allegations

respecting all the material elements necessary to sustain a recovery under some viable legal

theory.’” (quoting Randall v. Scott, 610 F.3d 701, 707 n.2 (11th Cir. 2010))). A policy or custom

“can be either a written custom or policy, such as an ordinance, or an unwritten practice that is so

widespread and ‘so permanent and well settled as to constitute a custom or use with the force of

law.’” Flowers, 869 F. Supp. 2d at 1334-35 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112,

127 (1988)).

i. Plaintiff’s Custom or Practice Claim

The City argues that Plaintiffs fail to plead sufficient facts of a widespread custom or

practice necessary to establish municipal liability. Specifically, the City contends that the incidents

alleged involving Cooper-Levy’s property in May, 2021 and the property owned by Simmons,

Rivers, and Sylverin in August, 2021 are insufficient to constitute a custom or practice. The City

argues that four instances, three of which happened at the same clean-up location and date, are

insufficient to be characterized as “widespread” or “persistent” in order to plausibly plead

municipal liability. Plaintiffs respond that the incidents alleged are sufficient. The Court agrees

with Plaintiffs.

Plaintiffs rely on Hoefling v. City of Miami, 811 F.3d 1271 (11th Cir. 2016) in support of

their argument. In Hoefling, the plaintiff asserted claims for violations of his Fourth and Fourteenth

Amendment rights against the City after City’s marine patrol officers seized his sailboat, on which

he lived, and destroyed it. In determining that his claims were adequately pleaded, the Eleventh

Circuit noted that

[i]n addition to what he pled concerning the seizure and destruction of his own

sailboat, Mr. Hoefling also alleged the following. First, on August 20, 2010, while

out of town, Mr. Hoefling received a call from a friend “notifying him that the

police were taking boats.” And, in fact, on his return, he discovered that his own

sailboat had been “unlawfully seized.” Second, Mr. Hoefling alleged that “local

mariners” told him, and that he was “independently aware, that others have fallen

victim to similar conduct as a result of the City[’s] and [the marine patrol officers’]

failure to adhere to law and appropriate procedures regarding the investigation and

destruction of potentially derelict vessels.” Third, Mr. Hoefling alleged that the City

refers to this “systematic roundup and destruction of ugly boats in its waters” as a

“cleanup” program. Based on these allegations, Mr. Hoefling alleged that the City

had a “policy, custom, and/or practice” of “failing to abide by” the state laws,

regulations, and procedures governing the “investigation and . . . removal of

derelict vessels located in state waters.” Furthermore, he alleged that the defendants

did “not follow established law and procedures intended to safeguard against the

unlawful destruction of private property[,] . . . instead choosing to remove and

destroy [his] property without due process. In sum, the City and its marine patrol

officers, “as a matter of policy, custom, and/or practice, ignored [his] fundamental

rights, as well as the fundamental rights of other vessel owners.”

811 F.3d at 1280. The Eleventh Circuit determined that these allegations were not the sort of

“naked allegations” which are insufficient to state a plausible claim for relief because the facts

alleged permitted “the reasonable inference that [the City] is liable for the misconduct alleged.”

Id. at 1281. The City does not acknowledge or address Hoefling in either its Motion or Reply.

Moreover, upon review, the cases the City relies upon to support its argument for dismissal are

procedurally distinguishable and not helpful to the Court’s analysis at this juncture. See Brown v.

Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (affirming summary judgment finding facts

insufficient to establish widespread abuse on the part of county jail); Denno v. Sch. Bd. of Volusia

Cnty., Fla., 218 F.3d 1267, 1277-78 (11th Cir. 2000) (affirming entry of summary judgment in

favor of school board because evidence was insufficient to create a genuine issue of fact as to “a

pervasive and well-settled custom”); Gold v. City of Miami, 151 F.3d 1346, 1350-51 (11th Cir.

1998) (setting aside judgment following jury verdict because plaintiff presented no evidence to

establish municipal policy or custom); Adams v. Custer, No. 14-CV-80403-CIV-HURLEY, 2016

WL 155081, at *19 (S.D. Fla. Jan. 12, 2016) (finding upon summary judgment that evidence

presented was insufficient to sustain a custom or practice claim); Mercado v. City of Orlando, 407

F.3d 1152, 1162 (11th Cir. 2005) (affirming summary judgment in favor of City of Orlando based

upon the plaintiff’s inability to show that previous incidents were substantially similar factually to

his case); Brooks v. Sheib, 813 F.2d 1191, 1193-94 (11th Cir. 1987) (finding on appeal following

jury verdict that evidence was insufficient to establish that deficient procedures were sufficient to

establish municipal liability); McDowell v. Brown, 392 F.3d 1283, 1290-91 (11th Cir. 2004)

(affirming determination upon summary judgment that evidence was insufficient to establish

custom or policy).

The only case at the dismissal stage relied upon by the City, Lordeus v. Miami-Dade

County, 263 F. Supp. 3d 1307 (S.D. Fla. 2017), is also distinguishable. In Lordeus, the plaintiff

alleged that police officers kicked him and yelled expletives at him during an arrest while he was

handcuffed, and as a result, claimed § 1983 violations for excessive force against the county and

the officers. 263 F. Supp. 3d at 1309. In concluding that his excessive force claim was

insufficiently pleaded, the court noted that the plaintiff alleged in conclusory fashion only that the

county “had a policy, custom or practice of allowing its police officers to use excessive force and

was on notice of the propensity for excessive force and failed to properly investigate complaints.”

Id. at 1311. In contrast, Plaintiffs here allege four instances on two separate occasions during which

the City seized and destroyed their personal property without providing adequate notice or an

opportunity for the owners to recovery their property.2 Although the City seeks to narrow the

Complaint’s allegations in arguing that they are insufficient to meet the requirement that a custom

or practice be persistent and widespread, the Court finds the allegations to be sufficient. The

specific sweeps alleged are separated in time by several months and they occurred at different

geographical locations.

In addition, the Complaint alleges the City’s practice and explains how that practice differs

from the City’s Policy. The Complaint describes how the City fails to sort or secure specific items

and makes no attempt to determine whether unattended property belongs to a homeless individual.

ECF No. [1] ¶¶ 36-37). The City’s Policy, which is attached to the Complaint, requires City staff

to complete a form and attempt to notify the owner when it stores property belonging to the

homeless individual. Id. at 18, section I.1. Plaintiffs allege that between January 1, 2021 and April

2022, City staff completed only two inventory invoices and made just one attempt to notify

someone that the City was holding their property while cleanup operations were taking place two

or three times per week, giving rise to the reasonable inference that homeless individuals’ due

process rights to notice are not being observed. Id. ¶ 41. Plaintiffs allege further context to support

2 Rivers and Simmons also allege that the City improperly seized and destroyed their property on other

additional occasions. Id. ¶¶ 79, 89. The City contends that these allegations are conclusory because the

Complaint does not provide dates, locations, or other details about what was destroyed, or how Plaintiffs

know the City was ultimately responsible. However, it is well-settled that there is no heightened pleading

standard in § 1983 case. See Hoefling, 811 F.3d at 1276 (acknowledging that the Eleventh Circuit has

“got[ten] rid of heightened pleading altogether in § 1983 cases.”).

the inference that there is a persistent and widespread practice that differs from the City’s Policy

by describing the City’s plan to clear homeless encampments through sweeps. Id. ¶¶ 22-23.

The Complaint also sufficiently alleges that the City fails to provide adequate notice of

sweeps, the City fails to sort or secure specific items, and fails to determine whether unattended

property belongs to a particular homeless individual. Id. ¶ 33; ¶¶ 36-37. Each of the Plaintiffs

allege he received no notice of an impending sweep occurring at the locations detailed in the

Complaint. Plaintiffs also allege that they each had a clearly established possessory interest in his

personal property, and that property was contained in their tents at the time of disposal. The City,

as Plaintiffs allege, makes no effort to sort through the property (even if it is not abandoned or

contaminated) and secure items such as identification, medicines, or other items identified by the

homeless person or readily identifiable as vital or significant personal property. Plaintiffs allege

that vital documents, including birth certificates, social security cards, public benefits cards,

medication, and an urn containing Cooper-Levy’s mother’s ashes, were all destroyed with no

attempt by City officials to adhere to the Policy. See id. ¶¶ 52, 64, 76, 84. Plaintiffs further allege

that their property was not abandoned or contaminated. Id. ¶¶ 51, 66, 77, 87. And although the

City argues that these allegations are merely conclusory, the Court disagrees. At the pleading stage,

the Court accepts the allegations that Plaintiffs’ property was not abandoned or contaminated.

Moreover, whether or not the property was in fact abandoned or contaminated is an issue of fact,

and is not appropriately resolved at the dismissal stage.

C. Claims for Injunctive and Declaratory Relief

Defendant argues next that Plaintiffs lack standing to seek claims for injunctive and

declaratory relief because Plaintiffs have not sufficiently alleged a substantial likelihood of future

injury, and declaratory and injunctive relief are inappropriate for past conduct. Plaintiffs respond

that the Complaint sufficiently alleges an entitlement to injunctive and declaratory relief.

i. Standing

The City argues that Plaintiffs have not alleged more than a speculative threat of future

injury, noting that they have not identified any violation since August, 2021 or harms of a

continuing nature. However, to accept the City’s contention, the Court would have to read the

Complaint too narrowly and impose a heightened pleading standard that, as the Court previously

notes, simply does not apply in this case. See supra at 10 n.2.

Because injunctions regulate future conduct, a party has standing to seek injunctive relief

only if the party alleges, and ultimately proves, a real and immediate—as opposed to a merely

conjectural or hypothetical—threat of future injury. City of Los Angeles v. Lyons, 461 U.S. 95,

101-02 (1983). Similarly, injuries sustained from “past conduct” will not support a claim for

declaratory relief absent a showing “that such conduct has continued or will be repeated in the

future.” Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir. 1985); see also Regency of Palm Beach,

Inc. QBE Ins. Corp., No. 08-81442-CIV, 2009 WL 2729954, at *4 (S.D. Fla. 2009); Am. Ins. Co.

v. Evercare Co., 699 F. Supp. 2d 1355, 1359 (N.D. Ga. 2010) (“The Declaratory Judgment Act is

inappropriate to adjudicate past conduct.”).

As alleged, Plaintiffs are homeless individuals, and the reasonable inference to be drawn

from the Complaint is that they continue to be exposed to the City’s practice of conducting sweeps,

and improperly depriving them of their personal property without notice. While the City attempts

to characterize the alleged threat of future injury as a mere “fear” that the Plaintiffs’ property will

again be unconstitutionally seized and destroyed, the fear is more than speculative. Accepting the

allegations as true, the challenged actions are a result of the City’s custom or policy and Plaintiffs

are involuntary members of a specific group subject to that custom or policy. As a result, Plaintiffs

“cannot avoid exposure to [Defendant’s] challenged conduct” and the alleged practice “presents a

substantial likelihood that the alleged injury will occur.” 31 Foster Children v. Bush, 329 F.3d

1255, 1266 (11th Cir. 2003); see also Church v. City of Huntsville, 30 F.3d 1332, 1338 (11th Cir.

1994) (noting that plaintiffs “are homeless involuntarily,” and concluding that because of the

“involuntary nature of their condition, the plaintiffs cannot avoid future exposure to the challenged

course of conduct” (internal quotations omitted)). Moreover, it is reasonable to infer from the

allegations that Plaintiffs will continue to be exposed to the City’s cleanup sweeps of homeless

encampments, such that the threat of future injury is more than “conjectural, hypothetical, or

contingent” Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1347 (11th Cir. 1999).

ii. Suitability of Injunctive and Declaratory Relief

The City also argues that injunctive and declaratory relief are improper here. With respect

to injunctive relief, the City contends that Plaintiffs cannot make the necessary showing because

they allege prior injuries, their claimed anticipated injuries are not actual or imminent, and the

requests for injunctive relief and monetary damages are inconsistent as pleaded. Plaintiffs respond

that the Complaint sufficiently alleges future injuries, and the availability of other remedies does

not render the request for injunctive relief inconsistent with their request for damages.

The City relies on Lary v. Trinity Physician Financial and Insurance Services, 780 F.3d

1101 (11th Cir. 2015) and Swain v. Junior, 961 F.3d 1276 (11th Cir. 2020) in support of it

argument. However, both cases are procedurally and factually distinguishable, and does not

support the outcome the City urges. In Lary, the plaintiff asserted violations of the Telephone

Consumer Protection Act against the defendants, seeking statutory damages and a permanent

injunction. 780 F.3d at 1104. The defendants did not defend the case and instead informed the

court that they would accept a default judgment. Id. Under those circumstances, the Eleventh

Circuit determined that the district court did not err in declining the request for a permanent

injunction, because the plaintiff did not establish either a likelihood of future injury or the

inadequacy of the legal remedy. Id. Here, there is no default, and § 1983 does not provide statutory

damages. In Swain, the plaintiffs were a group of medically vulnerable inmates who sued the

County and director of the correctional department for violating their constitutional rights for their

inadequate response to the COVID-19 outbreak. 961 F.3d at 1280. Upon a motion for preliminary

injunction, the district court enjoined the defendants to take precautionary measures to halt the

spread of COVID and provide regular status reports. Id. On appeal, the Eleventh Circuit reversed

the preliminary injunction, finding that the plaintiffs’ showing as to their Fourteenth Amendment

claim did not support a finding of deliberate indifference. Id. at 1289. Importantly, however,

Plaintiffs here have not requested a preliminary injunction, and although the City invites the Court

to engage in an analysis of the merits of an injunction, it would be improper to do so. As the Court

previously explained, Plaintiffs sufficiently allege a threat of future harm, and Plaintiffs need do

no more at this juncture for their claim for relief to stand. Plaintiffs are not required to prove their

claims at the dismissal stage.

Regarding Plaintiffs’ request for declaratory relief, the City argues that such relief is

improper based upon the Complaint’s allegations that seek a “[d]eclaratory judgment that

Defendant’s policies, practices and conduct violated Plaintiffs rights . . . .” ECF No. [1] at 14

(emphasis added). Thus, the City contends that Plaintiffs improperly seek declaratory relief for

past conduct only. Plaintiffs respond that the allegations in the Complaint support a continuing

practice and conduct by the City, violating Plaintiffs’ rights under the Fourth and Fourteenth

Amendment, and supports their request for declaratory relief. Upon review, the Court agrees with

Case No. 22-cv-21939-BLOOM/Otazo-Reyes

Plaintiffs. Even though the request for relief contains the word “violated” instead of “violates,” the

Complaint alleges facts of a real and continuing dispute. See Malowney, 193 F.3d at 1347 (“The

plaintiff must allege facts from which the continuation of the dispute may be reasonably inferred.

Additionally, the continuing controversy may not be conjectural, hypothetical, or contingent; it

must be real and immediate, and create a definite, rather than speculative threat of future injury.”’)

(citation omitted). Thus, the Court will not dismiss the request under the circumstances.

IV. CONCLUSION

It is therefore ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss, ECF

No. [16], is DENIED. The City shall file its Answer no later than December 16, 2022.

DONE AND ORDERED in Chambers at Miami, Florida, on December 6, 2022.

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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