# Gray v. Howard

> District Court, S.D. Florida · July 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10122168

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** July 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10122168. Public record. Not legal advice.