# Brown v. Tony

> District Court, S.D. Florida · October 23, 2023

URL: https://www.frixlaw.com/law-library/cases/10122639

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** October 23, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 0:23-cv-60033-KMM

DEVON A. BROWN,

Plaintiff,

v.

GREGORY TONY, in his individual capacity
and in his official capacity as Sheriff of Broward
County, Florida, et al.,

Defendants.
___________________________________ /

ORDER
THIS CAUSE came before the Court upon the Application to Proceed in District Court
Without Prepayment of Fees or Costs filed by Plaintiff Devon A. Brown. (“Application”) (ECF
No. 3). The Court referred the matter to the Honorable Lauren F. Louis, United States Magistrate
Judge, to take “all necessary and proper action as required by law regarding all pre-trial, non-
dispositive matters including discovery, and for a Report and Recommendation on any dispositive
matters.” (ECF No. 4). On July 25, 2023, Magistrate Judge Louis entered a Report and
Recommendation, recommending that Plaintiff’s Application be denied without prejudice and that
the Amended Complaint, (“Am. Compl.”) (ECF No. 5), be dismissed with leave to amend.
(“R&R”) (ECF No. 9). On August 3, 2023, Plaintiff filed Objections to the R&R. (“Objs.”) (ECF
No. 11). The matter is now ripe for review. As set forth below, the Report and Recommendation
is ADOPTED.
The Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
The Court “must consider de novo any objection to the magistrate judge’s recommendation.” Fed.
R. Civ. P. 72(b)(3). A de novo review is required if a party files “a proper, specific objection” to
a finding contained in the report. Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006).
“It is critical that the objection be sufficiently specific and not a general objection to the report” to
warrant de novo review. Id.

However, a party’s objections are improper if they expand upon and reframe arguments
already made and considered by the magistrate judge, or simply disagree with the magistrate
judge’s conclusions. See Melillo v. United States, No. 17-CV-80489, 2018 WL 4258355, at *1
(S.D. Fla. Sept. 6, 2018); see also Marlite, Inc. v. Eckenrod, No. 10-23641-CIV, 2012 WL
3614212, at *2 (S.D. Fla. Aug. 21, 2012) (“It is improper for an objecting party to . . . submit [ ]
papers to a district court which are nothing more than a rehashing of the same arguments and
positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not
to be afforded a ‘second bite at the apple’ when they file objections to a R & R.”) (quoting
Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y.

1992)). When the objecting party has not properly objected to the magistrate judge’s findings,
“the court need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” See Keaton v. United States, No. 14-21230-CIV, 2015 WL
12780912, at *1 (S.D. Fla. May 4, 2015); see also Lopez v. Berryhill, No. 17-CV-24263, 2019 WL
2254704, at *2 (S.D. Fla. Feb. 26, 2019) (stating that a district judge “evaluate[s] portions of the
R & R not objected to under a clearly erroneous standard of review” (citing Davis v. Apfel, 93 F.
Supp. 2d 1313, 1317 (M.D. Fla. 2000))).
Plaintiff’s Objection states that he “respectfully disagrees” with Judge Louis’s finding of a
shotgun pleading and that he did properly state a claim for “religious violation.” Objs. at 1.
Plaintiff also relies on Hafer v. Melo for the assertion that he may sue Defendants Tony and Cepero
in their individual capacities. See 502 U.S. 21, 25–26 (1991); Objs. at 2. However, while that
case held that state officials, sued in their individual capacities, are “persons” within the meaning
of § 1983, Judge Louis’s finding concerns Plaintiff’s claims under the Religious Land Use and
Institutionalized Persons Act (RLUIPA). See Hafer, 502 U.S. at 31. As Judge Louis correctly

notes, “RLUIPA does not authorize claims for monetary damages against prison officials in their
individual capacities.” R&R at 7–8 (citing Davila v. Marshall, 649 F. App’x 977, 980 (11th Cir.
2016). Plaintiff’s filings are not proper objections to Magistrate Judge Louis’s R&R, nor do they
remedy the deficiencies identified in the R&R. Accordingly, this Court need only be satisfied that
there is no clear error. See Keaton, 2015 WL 12780912, at *1.
As set forth in the R&R, Magistrate Judge Louis finds that: (1) the Amended Complaint
is a shotgun pleading and should be dismissed without prejudice with leave to amend; (2) the
Amended Complaint lacks sufficient factual detail to plausibly set forth an RLUIPA violation in
Count 2 and improperly charges Defendants Tony and Cepero in their individual capacities; (3)

the Amended Complaint lacks sufficient factual detail to plausibly set forth claims for violations
of the First Amendment’s Free Exercise Clause; (4) all claims against the County asserted in
Counts 4 and 5 must be dismissed without prejudice for failure to allege waiver of sovereign
immunity; (5) the Amended Complaint lacks sufficient detail to plausibly state a claim in Count 4
for violation of rights under Florida’s Constitution; and (6) Plaintiff’s claim for negligent hiring
should be dismissed because the claim improperly combines negligent hiring and negligent
supervision or retention. R&R at 5–14. Magistrate Judge Louis recommends that Plaintiff’s
Application be denied without prejudice, Count 2 of the Amended Complaint be dismissed with
prejudice to the extent Plaintiff asserts a claim against Defendants Tony and Cepero in their
individual capacities for damages, and the Amended Complaint be dismissed without prejudice in
all other respects with leave to amend. Id. at 14.
This Court agrees.
UPON CONSIDERATION of the Amended Complaint (ECF No. 5), the pertinent portions
of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND

ADJUDGED that:
1. The R&R (ECF No. 9) is ADOPTED.
2. The Application to Proceed in District Court Without Prepayment of Fees or Costs (ECF
No. 3) is DENIED WITHOUT PREJUDICE.
3. Count 2 of the Amended Complaint (ECF No. 5) is DISMISSED WITH PREJUDICE to
the extent Plaintiff asserts a claim against Defendants Tony and Cepero in their individual
capacities for damages.
4. The Amended Complaint (ECF No. 5) is DISMISSED WITHOUT PREJUDICE in all
other respects for failure to state a valid claim pursuant to 28 U.S.C. § 1915(e).

5. Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, Plaintiff is granted leave
to file an amended complaint on or before November 13, 2023. Failure to do so shall result
in dismissal with prejudice for failure to state a valid claim under 28 U.S.C. § 1915(e).
6. The Clerk of Court is instructed to CLOSE this case. The Court will instruct the Clerk of
Court to reopen this case upon the filing of a second amended complaint that cures the
deficiencies discussed above. If Plaintiff decides to initiate a new case by re-filing the
Complaint in this Court, he must either (1) pay the $402.00 filing fee; or (2) file a motion
to proceed in forma pauperis.
7. All pending motions are DENIED AS MOOT.
8. The Clerk of Court is INSTRUCTED to transmit a copy of this Order to Plaintiff.
DONE AND ORDERED in Chambers at Miami, Florida, this 23rd_ day of October, 2023.

K. MICHAEL MOORE
UNITED STATES DISTRICT JUDGE
c: Devon A. Brown
P.O. Box 470373
Miami, FL 33247
PRO SE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10122639. Public record. Not legal advice.