The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-80027-CIV-CANNON/Reinhart
MAXIMINO CUEVAS, JR.,
Plaintiff,
v.
ABBEY DELRAY SOUTH,
Defendant.
__________________________________/
ORDER ACCEPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION [ECF No. 18]
THIS CAUSE comes before the Court upon the Magistrate Judge’s Report and
Recommendation on Defendant’s Motion to Dismiss the Second Amended Complaint (the
“Report”) [ECF No. 18], filed on June 8, 2023. On February 14, 2023, Defendant filed a Motion
to Dismiss Plaintiff’s Second Amended Complaint (the “Motion”) [ECF No. 9]. On June 8, 2023,
following referral, Judge Reinhart issued a Report recommending that the Motion be granted
[ECF No. 18 pp. 1, 10]. Plaintiff filed Objections to the Report [ECF No. 19], and Defendant filed
a Response to Plaintiff’s Objections [ECF No. 20]. Following review, the Report [ECF No. 18] is
ACCEPTED; Defendant’s Motion is GRANTED [ECF No. 9]; and Plaintiff’s Second Amended
Complaint [ECF No. 6] is DISMISSED WITH PREJUDICE.
LEGAL STANDARD
To challenge the findings and recommendations of a magistrate judge, a party must file
specific written objections identifying the portions of the proposed findings and recommendation
to which objection is made. See Fed. R. Civ. P. 72(b)(3); Heath v. Jones, 863 F.2d 815, 822
(11th Cir. 1989); Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). A district court
reviews de novo those portions of the report to which objection is made and may accept, reject,
or modify in whole or in part, the findings or recommendations made by the magistrate judge.
28 U.S.C. § 636(b)(1).
DISCUSSION
The Court has conducted a de novo review of the Report [ECF No. 18], Plaintiff’s
Objections [ECF No. 19], Defendant’s Response to Plaintiff’s Objections [ECF No. 20], and the
full record. Upon review of the foregoing materials, the Court finds Judge Reinhart’s Report to
be well-reasoned and correct.
The Report recommends that the Court dismiss the Second Amended Complaint because
it is an impermissible shotgun pleading that does not comport with the basic pleading requirements
under Rule 8 of the Federal Rules of Civil Procedure [ECF No. 18 p. 7]. Judge Reinhart correctly
explains that Plaintiff’s Second Amended Complaint “includes vague and conclusory allegations
that are not clearly tied to any particular cause of action”; fails to identify Plaintiff’s “legal theory
or the statute under which he proceeds”; and does not provide “factual support for its conclusory
allegations that [Plaintiff’s] transfer was discriminatory” [ECF No. 18 p. 7]. Further, the Report
notes that the Second Amended Complaint “fails to state [Plaintiff’s] claim in numbered
paragraphs” and instead is comprised of “a single paragraph narrative alleging conclusory
allegations of discrimination” [ECF No. 18 p. 8]. The Report recommends that the Court dismiss
the Second Amended Complaint with prejudice because the Court previously gave Plaintiff one
final opportunity to amend following the Court’s dismissal of the Amended Complaint on shotgun
pleading grounds [see ECF No. 5].1 The Court’s Order instructed Plaintiff that failure to file a
1 Plaintiff filed his initial complaint in state court in October 2022 [ECF No. 1-2 pp. 2, 7–8]; he
then amended that complaint in December 2022 in state court, prior to removal [ECF No. 1-2
complaint in accordance with the Court’s Order would result in dismissal [ECF No. 5 p. 2], yet
Plaintiff failed to correct those pleading deficiencies.
Plaintiff timely objections to the Report [ECF No. 19], but the Objections are conclusory
and make no attempt to object to a specific portion of the Report or to respond to the Report’s
sound determination that the Second Amended Complaint is a shotgun pleading [see ECF No. 19].
At most, Plaintiff contends that his “allegations are ‘more than just labels and conclusions’ and
speculation,” and that if his case were to proceed to trial, “[t]here are witnesses and written
documents to prove [his] allegation[s] took place” [ECF No. 19 p. 1].
Upon review of the Report and the full record, the Court agrees that Plaintiff’s Second
Amended Complaint is an impermissible shotgun pleading [see ECF No. 18 pp. 7–9]. See Weiland
v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir. 2015); Fed. R. Civ. P. 8(a)(2);
Fed R. Civ. P. 10(b). Although mindful that courts afford pro se litigants leeway in pleadings, see
Haines v. Kerner, 404 U.S. 519, 520 (1972), pro se litigants are nevertheless required to meet
certain essential burdens in their pleadings. See Brown v. Crawford, 906 F.2d 667, 670 (11th Cir.
1990). Courts do not have license to rewrite an otherwise deficient pleading, GJR Invs., Inc., v.
Cnty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998). The Court has considered Plaintiff’s
generalized Objections [ECF No. 19] but finds no basis therein to reject or modify the Report.2
pp. 29–31]; and then he amended a second time after being given one final opportunity to amend
by this Court [ECF Nos. 5, 6].
2 The Court also denies Plaintiff’s conclusory request to amend his Complaint for a third time
[ECF No. 19 p. 1]. First, the Court’s prior Order Dismissing the Amended Complaint warned
Plaintiff that filing a Second Amended Complaint would be his final opportunity to amend his
pleadings [ECF No. 5 p. 2]. Second, Plaintiff previously amended his complaint in state court,
bringing to three the total number of complaints in this action. Supra note 1. Third, Plaintiff made
no request to amend when he opposed Defendant’s Motion [ECF No. 10], electing instead to
include his amendment request in his conclusory objection to the Report [ECF No. 19]. And
fourth, even in the objection itself, Plaintiff still fails to identify what allegations he would add to
CASE NO. 23-80027-CIV-CANNON/Reinhart
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. The Report and Recommendation [ECF No. 18] is ACCEPTED.
2. Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint [ECF No. 9] is
GRANTED.
3. Plaintiff's Second Amended Complaint [ECF No.6] is DISMISSED WITH
PREJUDICE.
4. The Clerk is instructed to CLOSE this case.
5. The Clerk is directed to mail a copy of this Order to Plaintiff at the address listed below.
DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 10th day of August
2023. 7 i
AILEE . CANNON
UNITED STATES DISTRICT JUDGE
cc: Maximino Cuevas, Jr.
P.O. Box 17581
West Palm Beach, Florida 33416
maxcuevasjr@gmail.com
PRO SE
the current pleading or how he intends to amend his pleading to avoid the well-described shotgun
pleading issues noted in the Report [ECF No. 18 pp. 7-8].