Gray v. Howard

United States District Court

for the

Southern District of Florida

David Arnold Gray, Plaintiff, )

)

v. ) Civil Action No. 22-23693-Civ-Scola

)

Ronald Howard and others, )

Defendants. )

Omnibus Order Granting Motion to Dismiss and

Denying Motion for Leave to Amend

Plaintiff David Arnold Gray, proceeding pro se, complains the

Defendants—Miami-Dade County and various individuals who are Miami-Dade

County officials or employees—violated his rights, associated with his

employment with the County’s Solid Waste Department as a “Trash Truck Driver

1.” (Corr. Am. Compl., ECF No. 1 (“Compl.”).) Previously, the Court stuck Gray’s

initial complaint, as a shotgun pleading. (Order, ECF No. 15.) Gray has since

filed a corrected amended complaint setting forth three counts, under 42 U.S.C.

§ 1983, all alleged to arise out of the deprivation of Gray’s procedural due-

process rights under the Fourteenth Amendment: count one is lodged against all

the Defendants; count two is lodged against only two of the County employees,

and is captioned a “willful deprivation of rights under color of law, ordinance, or

regulation”; and count three is lodged against three other County employees for

“conspiracy against rights under color of law, ordinance, or regulation.” (Id.) In

response, the Defendants have filed a motion to dismiss, arguing (1) Gray fails to

state a plausible procedural due-process claim under § 1983; (2) Gray fails to

allege a plausible claim of an unconstitutional deprivation of a property interest;

(3) conspiracy claims are unavailable against the County and County employees;

(4) Gray has state remedies available; (5) punitive damages are unavailable

against the County; and (6) the individual Defendants are shielded from liability

by qualified immunity. (Defs.’ Mot., ECF No. 18). Gray opposes the motion (Pl.’s

Resp., ECF No. 19), to which the Defendants have replied (Defs.’ Reply, ECF No.

20). After the conclusion of the briefing of the Defendants’ motion to dismiss,

Gray filed a motion for leave to amend his complaint (Pl.’s Mot., ECF No. 24),

which the Defendants opposed (Defs.’ Resp., ECF No. 25). After review, the Court

grants the Defendants’ motion to dismiss the corrected amended complaint (ECF

No. 18) and denies Gray’s motion for leave to amend (ECF No. 24).

1. Background1

The bases of Gray’s grievances are not altogether clear but it appears his

difficulties began in January 2022, while he was employed as a “Trash Truck

Driver 1” for the Department of Solid Waste Management for Miami-Dade

County. (Compl. ¶¶ 11, 14.) In the morning of January 25, Gray attempted to

fuel his assigned County “roll-off vehicle” at County “fuel site #17.” (Id. ¶ 36.)

Defendant Alfred Coleman, a “Waste Supervisor 2” for the Department, however,

informed Gray that he would be written up if he got fuel there. (Id. ¶¶ 10, 14.)

The next day, Gray asked Coleman for a copy of the Standard Operating

Procedures for the Trash Division. (Id. ¶ 15.) In response, Coleman told Gray

that he had “the rule book in [his] head” and advised Gray he could ask Coleman

anything about Gray’s job responsibilities. (Id.) Coleman also told Gray that

Coleman could tell him where he could get a copy of his job description. (Id.)

This interaction appears to have prompted Gray, a few days later, to

submit a “career service grievance” to Defendant Ronald Howard, the Division

Chief 3 for the Department. (Id. ¶¶ 9, 16.) According to Gray, Coleman’s failure

to provide Gray with the operating procedures violated a County regulation that

specifies that “copies of policies and work rules should be made available to

employees and employees should know where to locate them.” (Id. ¶ 16 (cleaned

up).)

The following week, on February 1, Howard directed another Department

employee to escort Gray from his assigned work location in Homestead to Doral

for a meeting. (Id. ¶ 17.) During that meeting, Howard told Gray that he did not

have the requested standard operating procedures but that Howard could

prepare “something like a cheat sheet” for Gray. (Id.) A week later, Gray

escalated his career service grievance to Defendant Sherra Durham-Camp, the

Assistant Director for the Department, complaining that Howard violated a

County regulation requiring a written response to an employee’s grievance within

seven days. (Id. ¶¶ 8, 18.)

Apparently in response to that email, Durham-Camp, on February 11,

then had another Department employee escort Gray, once again, from

Homestead to Doral, for a meeting about Gray’s grievances with Durham-Camp,

Howard, and Coleman. (Id. ¶ 19.) During that meeting, Durham-Camp presented

Gray with a cheat sheet—a single page with thirteen bullet points of what Gray

describes as “ambiguous information.” (Id.) Gray rejected the document because,

he says, “it lacked official presentation.” (Id.)

1 The Court accepts the complaint’s factual allegations, as set forth below, as true for the

purposes of evaluating the motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116

F.3d 1364, 1369 (11th Cir. 1997).

A few days later Gray once again escalated his grievance, this time to

Defendant Michael Fernandez, the Director for the Department, seeking redress

for Durham-Camp’s violation of a County regulation that requires a division

director to respond to an employee grievance in writing, within seven days. (Id.

¶¶ 6, 20.) A week later, on February 22, Fernandez denied Gray’s grievance, by

way of a letter, while also providing answers to a number of Gray’s inquiries. (Id.

¶ 21.) Still not satisfied, Gray emailed Tyrone Williams, the Division Director of

Labor Relations for the County’s Department of Human Resources, seeking an

appeal hearing. (Id. ¶¶ 7, 22.) According to Gray, Fernandez violated a County

regulation requiring a department director to meet with an employee who has

submitted a written grievance and to thereafter provide a written response within

seven days of receiving the grievance. (Id. ¶ 22.) A month later, Williams sent

Gray a letter, denying his request for an appeal hearing. (Id. ¶ 23.)

Unhappy with that denial, Gray emailed Deputy Mayor Jimmy Morales,

complaining that he was “being retaliated against by supervisors for exercising

[his] rights to petition for redress and now [his] workplace is a hostile

environment.” (Id. ¶ 24.) A month later Gray emailed Mayor Daniella Levine

Cava, complaining of workplace harassment and demanding a meeting with her

so that he could “explain everything from A to Z.” (Id. ¶ 25.) Over a month after

that, Gray emailed the Mayor again, threatening court action unless she

disciplined the trash-division employees for their “Jim Crow practices” and

“willful acts of negligence and conduct unbecoming.” (Id. ¶ 26.) Months later,

Gray initiated this lawsuit, seeking nearly $2 million in damages and injunctive

relief. (Id. ¶¶ 1–2.)

2. Legal Standard

A court considering a motion to dismiss, filed under Rule 12(b)(6), must

accept all the complaint’s allegations as true, construing them in the light

most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th

Cir. 2008). Although a pleading need only contain a short and plain statement

of the claim showing that the pleader is entitled to relief, a plaintiff must

nevertheless articulate “enough facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “But where

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 shown—

that the pleader is entitled to relief.” Ashcroft v. Iqubal, 556 U.S. 662, 679

(2009) (quoting Fed. R. Civ. P. 8(a)(2)) (internal punctuation omitted). A court

must dismiss a plaintiff’s claims if she fails to nudge her “claims across the line

from conceivable to plausible.” Twombly, 550 U.S. at 570.

3. Analysis

A. Gray fails to state a claim against any of the Defendants.

The Defendants argue that Gray has failed to state a plausible procedural

due-process claim under § 1983. Gray’s opposition to the Defendants’ motion is

largely non-responsive and difficult to parse. After review, the Court finds the

Defendants’ position well taken and unrebutted by Gray.

“In this circuit, a § 1983 claim alleging a denial of procedural due process

requires proof of three elements: (1) a deprivation of a constitutionally-protected

liberty or property interest; (2) state action; and (3) constitutionally-inadequate

process.” Arrington v. Helms, 438 F.3d 1336, 1347 (11th Cir. 2006). Gray’s

allegations do not make it past the first element and so the Court declines to

evaluate the other two.

As to this first element, the Court “must consider whether the [plaintiff

has] shown not only a constitutionally-protected property interest, but also a

governmental deprivation of that constitutionally-protected property interest.” Id.

at 1348. For purposes of procedural due-process claims, “[p]roperty interests

stem not from the Constitution, but from such sources as statutes, regulations,

ordinances, and contracts.” Id. And “[s]tate law defines the parameters of a

plaintiff’s property interest for section 1983 purposes.” Pete’s Towing Co. v. City

of Tampa, Fla., 648 F. Supp. 2d 1276, 1288 (M.D. Fla. 2009), aff'd, 378 F. App’x

917 (11th Cir. 2010). Gray’s claims all fail because he has not alleged any facts

supporting an inference that he has a constitutionally-protected property

interest in any of the actions that he says the Defendants either prevented him

from taking or failed to take themselves.

Gray appears to rely on a handful of County regulations that govern

various, routine aspects of the County’s relationship with its employees. For

example, one regulation Gray cites to provides that “copies of policies and work

rules should be made available to employees.” (Compl. ¶ 16 (cleaned up).) Others

require certain supervisors to “respond to the employee in writing within seven

calendar days from the date the written grievance was received.” (Id. ¶¶ 18, 20,

22.) And another requires a department director to meet with an employee who

has submitted a written grievance. (Id. ¶ 22.) Gray then claims, without

elaboration, that he has “a procedural entitlement” to (1) fuel his truck at site

#17 (e.g., id. ¶ 36); (2) receive redress in response to his petitions to Howard,

Durham-Camp, and Fernandez regarding his various grievances (e.g., id. ¶¶ 37–

39, 46, 50); (3) obtain an appeal hearing in response to his petition to Williams

(id. ¶¶ 23, 40, 47); and (4) procure “due process and equal protection” in

response to his emails to the Deputy Mayor and the Mayor (id. ¶¶41–43.) These

largely conclusory allegations fall far short of even implying a property interest

established by state law, never mind establishing a constitutionally-protected

property interest. Without more, Gray’s interest in fueling his truck at site #17,

having a workplace grievance resolved in his favor, being granted an appeal

hearing, and receiving a positive response to the emails he sent to the deputy

mayor and mayor do not rise to the level of constitutionally protected property

interests.

Based on Gray’s failure to set forth remotely plausible allegations

supporting his due-process claims, he cannot come even close to overcoming the

individual Defendants’ claims to qualified immunity. Gray does not dispute the

individual Defendants’ position that, based on Gray’s allegations, they were all

acting with their discretionary authority. Accordingly, the burden falls to back to

Gray to show that the Defendants violated Gray’s “clearly established”

constitutional rights of which a reasonable person would have been aware based

on the state of the law at the time of the official’s conduct. Hope v. Pelzer, 536

U.S. 730, 741−42 (2002). “This burden is not easily discharged: That qualified

immunity protects government actors is the usual rule; only in exceptional cases

will government actors have no shield against claims made against them in their

individual capacities.” Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996)

(cleaned up). Gray falls far short of establishing any constitutional violations,

never mind any that are clearly established.

Similarly, Gray widely misses the mark in trying to establish the County’s

liability. “Ordinarily, a county may only be sued under section 1983 when a

plaintiff’s injuries are caused by an official policy of the county.” Gaviria v.

Guerra, 17-23490-CIV, 2018 WL 1876124, at *5 (S.D. Fla. Apr. 19, 2018)

(Altonaga, J.) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).

That is, municipalities and other local-government entities are subject to

liability under § 1983 and may be sued directly for relief where “the action that

is alleged to be unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by that

body’s officers.” Monell , 436 U.S. at 690. Only if the alleged constitutional

violations resulted from a custom, policy, or practice of a local government

entity may that entity be held liable. Id. at 694; Wideman v. Shallowford Cmty.

Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir. 1987); see also Farred v. Hicks, 915

F.2d 1530, 1532–33 (11th Cir. 1990) (“Governmental entities may be held liable

under section 1983 when a governmental ‘policy or custom’ is the ‘moving

force’ behind the constitutional deprivation.”) (citing Kentucky v. Graham, 473

U.S. 159, 166 (1985)). Gray fails to identify any unconstitutional County policy

whatsoever that resulted in a constitutional injury. Accordingly, any claim

against the County also necessarily fails.

With no viable claim against any of the Defendants, Gray’s corrected first

amended complaint is subject to dismissal.2

B. Granting Gray leave to file a second amended complaint would be

futile.

After the Defendants’ motion to dismiss had been fully briefed, Gray

moved for leave to file a second amended complaint. (Pl.’s Mot. to Amend, ECF

No. 24.) In his proposed second amended complaint, Gray drops counts two and

three, reduces the pages of his complaint by half, and exponentially escalates his

request for damages to over $10 million. (Proposed 2nd Am. Compl., ECF No. 24-

1.) Once again, however, the complaint suffers from a surplusage of conclusory

allegations and a dearth of concrete or meaningful factual allegations. For

example, Gray complains that Howard, Durham-Camp, and Fernandez all “used

verbal intimidation and bullying to violate Plaintiff’s rights to inspect

departmental [standard operating procedures].” (Id. ¶¶ 14–16.) Similarly, Gray

says Williams unilaterally “denied Plaintiff’s rights to a grievance appeal hearing

before a three . . . person grievance appeal panel.” (Id. ¶ 17.) These cursory

allegations are all left unbuttressed by any supporting facts. Elsewhere, in the

proposed pleading, Gray recounts facts that are untethered to a viable cause of

action. For instance, he says that in response to his “request to inspect and copy

the Standard Operating Procedures,” “Coleman stated the rule book is in my

head and you can ask me anything you want to know about your job.” (Id. ¶ 12.)

In short, none of these allegations remedies the defects the Court identified when

it struck Gray’s initial complaint nor do they cure the shortcomings the

Defendants identify in their motion to dismiss. In other words, even affording

Gray the leniency the Court affords litigants proceeding pro se, Gray’s proposed

pleading would still be subject to dismissal, rendering the amendment futile.

4. Conclusion

For the reasons set forth above, the Court grants the Defendants’ motion

to dismiss (ECF No. 18) because Gray has failed to state a claim and denies

Gray’s motion for leave to amend his complaint (ECF No. 24) because the

amendment would be futile. The Court’s dismissal of Gray’s complaint is with

prejudice because (1) it is on the merits, (2) Gray has repeatedly failed to fix the

substantive and procedural deficiencies in his pleading, identified by both the

Court and the Defendants, and (3) any further amendment appears futile. See

Gendron v. Connelly, 22-13865, 2023 WL 3376577, at *2 (11th Cir. May 11,

2 Based on the deficiencies outlined above, the Court declines to evaluate the additional issues

the Defendants identify as warranting dismissal.

2023) (recognizing that “a pro se plaintiff must generally be given one chance to

amend the complaint before the district court dismisses the action with

prejudice”).

The Court directs the Clerk to close this case. Any pending motions are

denied as moot.

Done and ordered in Miami, Florida, on July 6, 2023.

Ce N. Scola, Jr.

United States District Judge