Lewis v. Antoine (MAG+)

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

WILLIAM M. LEWIS, )

)

Plaintiff, )

)

v. ) Case No. 2:18-cv-945-ECM-SRW

)

JEROME ANTOINE et al., )

)

Defendants. )

REPORT AND RECOMMENDATION

Pro se Plaintiff William M. Lewis filed this action against Defendant Jerome

Antoine, the Mayor of Georgiana, Alabama; Defendant the City of Georgiana, Alabama;

and Defendant the City Council of Georgiana, Alabama. The court granted Plaintiff’s

application for leave to proceed in forma pauperis,1 ordering the clerk to defer service of

process on Defendants until further order of the court, pending review of Plaintiff’s

complaint pursuant to the provisions of 28 U.S.C. § 1915(e). Doc. 7 at 2. Before that review

occurred, Plaintiff amended his complaint. Doc. 8.

Upon review of Plaintiff’s first amended complaint (Doc. 8), the court afforded

Plaintiff the opportunity to amend his complaint once again. Doc. 10 at 9. The court

indicated that

1 [A]ny court of the United States may authorize the commencement, prosecution or defense of

any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or

security therefor, by a person who submits an affidavit that includes a statement of all assets such

[person] possesses that the person is unable to pay such fees or give security therefor. Such

affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person

is entitled to redress. 28 U.S.C. § 1915(a)(1).

[t]he amended complaint shall comply with the Federal Rules of Civil

Procedure and shall (1) clearly state which causes of action [Plaintiff] intends

to state against the Defendants, and (2) for each cause of action alleged, set

forth all of the material facts giving rise to the cause of action clearly and

concisely, without omitting any of the necessary facts as discussed in this

order.

Id.

Plaintiff filed a second amended complaint on October 21, 2019. Doc. 11. Upon

review, the court finds that the second amended complaint is due to be dismissed pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii). In relevant part, § 1915(e) provides that “the court shall

dismiss the case at any time if the court determines that . . . the action or appeal . . . is

frivolous or malicious [or] . . . fails to state a claim on which relief may be granted . . . .”

28 U.S.C. § 1915(e)(2)(B).

Although the court construes pro se pleadings liberally, see Hughes v. Lott, 350 F.3d

1157, 1160 (11th Cir. 2003), pro se litigants must nonetheless follow the procedural rules,

and the court will not be required to rewrite a deficient pleading. See GJR Invests., Inc. v.

County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by

Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010) (relying on Ashcroft v. Iqbal, 556 U.S.

662 (2009)). “Federal Rule of Civil Procedure 12(b)(6) standards govern [a court’s] review

of dismissals under section 1915(e)(2)(B)(ii)[.]” Mitchell v. Farcass, 112 F.3d 1483, 1490

(11th Cir. 1997); see also Jones v. Brown, 649 F. App’x 889, 890 (11th Cir. 2016) (citing

Mitchell, supra) (“We review the district court’s dismissal for failure to state a claim for

which relief may be granted pursuant to § 1915(e)(2)(B)(ii) de novo, applying the same

standards that govern Federal Rule of Civil Procedure 12(b)(6).”). In considering a Rule

12(b)(6) motion, the court

must view the complaint in the light most favorable to the plaintiff,

accepting all of the plaintiff’s well-pleaded facts as true. Am. United Life

Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). Pro se

pleadings are liberally construed and held to a less stringent standard than

pleadings drafted by attorneys. Powell v. Lennon, 914 F.2d 1459, 1463

(11th Cir. 1990). However, in order to survive a motion to dismiss, the

plaintiff’s complaint must contain facts sufficient to support a plausible

claim to relief. [Iqbal, 556 U.S. at 678].

Id. Additionally, Federal Rule of Civil Procedure 8 requires that a plaintiff file a “short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)). Therefore, even if liberally construed, Plaintiff’s second amended complaint

(Doc. 11) must minimally satisfy Rule 8 to survive review under § 1915(e). Furthermore,

an amended complaint entirely supersedes all prior complaints. See Pintando v. Miami-

Dade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007); Fritz v. Standard Life Ins.

Co., 676 F.2d 1356, 1358 (11th Cir. 1982) (finding that under the Federal Rules of Civil

Procedure an amended complaint supersedes the original complaint). Once a complaint is

amended, the only issues before the court are those raised in the amended document, and

the plaintiff may not rely upon or incorporate by reference his prior pleadings. This court

has reviewed Plaintiff’s second amended complaint (Doc. 11) in light of the foregoing

principles.

1. Facts Alleged in Second Amended Complaint

In his second amended complaint, Plaintiff alleges that the City of Georgiana,

Alabama requires “public speakers [who] desire to speak before the City Council of

Georgiana, Alabama to seek permission to appear and speak before the city council at its

official meetings.” Id. at 2. The Mayor decides and “dictates to the city clerk” who is

approved to speak before the City Council. Id. The City Council then “advertise[s] the

agenda speakers before the start of each meeting.” Id. On an unspecified date, Plaintiff

submitted to the City Clerk of Georgiana, Alabama a “letter of request to appear before the

City Council” at its scheduled meeting “due at that time to be held November 6, 2018.”2

Id. at 2–3. The letter is not attached to Plantiff’s second amended complaint. Plaintiff

alleges that, on November 2, 2018, he also provided each member of the City Council the

letter of request. Id. at 3. Plaintiff further alleges that, on November 2, 2018, he “was orally

informed face to face by the City Clerk . . . that [his] letter request to appear before the City

Council of Georgiana, Alabama was denied by the Mayor of the City of Georgiana,

Alabama.” Id. at 2–3. According to Plaintiff, “the general rule and custom of the City of

Georgiana, Alabama vest[s] in the mayor . . . the power to deny a public citizen the right

to come before the public forum held be [sic] the City Council . . . weekly.” Id. at 4.

Plaintiff states that, had he been permitted to speak, he “would have informed the public

about taxation and representation issues.” Id. Plaintiff claims that the Mayor “violated the

US First Amendment” and that the “City of Georgiana, by and through its mayor,

discriminated against [him] by engaging in viewpoint discrimination.” Id. at 3–4. Plaintiff

alleges that, as a result, he incurred “stress and disappointment” for which he now seeks

“Makewhole Relief.” Id. at 4, 6.

2. Discussion

2 Plaintiff filed his original complaint in this matter on November 2, 2018.

The First Amendment of the United States Constitution provides that “Congress

shall make no law . . . abridging the freedom of speech.” The First Amendment guarantee

against the abridgment of free speech has been extended to apply to government actors

through the Fourteenth Amendment. Everson v. Board of Educ., 330 U.S. 1, 8 (1947). In

general, when a plaintiff alleges that government action has interfered with his or her

protected speech, the court must determine (1) whether the speech at issue is protected, (2)

the nature of the forum in which the speech occurred, and (3) whether the government’s

action is justified under the requisite standard. Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc., 473 U.S. 788, 797 (1985). The level of scrutiny applied typically depends on

the type of forum involved. Id. The Eleventh Circuit has articulated the following with

respect to claims that a city’s procedural rules violate the First Amendment:

“The freedom of expression protected by the First Amendment is not

inviolate; the Supreme Court has established that the First Amendment does

not guarantee persons the right to communicate their views ‘at all times or in

any manner that may be desired.’” Jones v. Heyman, 888 F.2d 1328, 1331

(11th Cir. 1989)(quoting Heffron v. International Soc’y for Krishna

Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981)).

This Court has held in Jones that a city commission meeting is one forum

where speech may be restricted “‘to specified subject matter.’” Jones, 888

F.2d at 1332 (quoting City of Madison Joint School Dist. v. Wisconsin

Employment Relations Comm’n, 429 U.S. 167, 176 n.8, 97 S.Ct. 421, 50

L.Ed.2d 376 (1976)). Stated differently, city commission meetings are

“limited” public for a—i.e., “a forum for certain groups of speakers or for

the discussion of certain subjects.” Crowder v. Housing Auth. of City of

Atlanta, 990 F.2d 586, 591 (11th Cir. 1993) (citing Perry Educ. Ass’n. v.

Perry Local Educators’ Ass’n., 460 U.S. 37, 46 n.7, 103 S.Ct. 948, 74

L.Ed.2d 794 (1983)). As such, “the government may restrict access to limited

public fora by content-neutral conditions for the time, place, and manner of

access, all of which must be narrowly tailored to serve a significant

government interest.” Id. (citing Perry, 460 U.S. at 45–46, 103 S.Ct. 948).

Rowe v. City of Cocoa, Fla., 358 F.3d 800, 802–803 (11th Cir. 2004).

Here, plaintiff expressly alleges “viewpoint discrimination,” which indicates that he

seeks to state a free speech claim on the theory that the Defendants prevented him from

speaking based on the content of his speech. Doc. 11 at 4. However, Plaintiff’s second

amended complaint has not cured the deficiencies identified in the court’s previous order

(Doc. 10). First, the second amendment complaint does not contain sufficient factual detail

to permit a finder of fact to determine whether the Council meeting at which he attempted

to speak was a limited public forum “for certain groups of speakers or for the discussion

of certain subjects.” Rowe, 358 F.3d at 802 (quoting Crowder, 990 F.2d at 591). Plaintiff

has neither alleged facts regarding the publicly stated purpose of the meeting in general

(e.g., whether the meeting was intended as a forum for general public comment or for the

City Council to conduct its business with contributions from members of the public

occurring only on specific topics or as specifically requested by the City Council), nor

alleged facts regarding the purpose of the particular portion of the meeting at which

Plaintiff sought permission to speak (e.g., whether Plaintiff sought to speak during a part

of the meeting expressly open to the public for comment or during a part of the meeting

intended only for speakers invited to express particular viewpoints or to address particular

topics). Second, Plaintiff’s conclusory allegation of “viewpoint discrimination” (Doc.

11 at 4) is insufficient to state a claim under the First Amendment without underlying

facts regarding the intended purpose of the alleged restrictions placed by Defendants on

his right to speak at the City Council meeting. The court previously explained to Plaintiff

that such information could come in a variety of forms—for example, information as to

whether other persons desiring to express the same viewpoint or to address the same topic

as Plaintiff were similarly prevented from speaking, while persons expressing an opposing

viewpoint or discussing a different topic were permitted to speak at the November 6, 2018,

meeting; whether Defendants made remarks evincing hostility specifically to Plaintiff’s

viewpoint, ideas, or intended subject matter; or whether Defendants had an affirmative

interest in suppressing Plaintiff’s expressed position or suppressing discussion of his

intended topic. Third, given the dearth of factual detail regarding the events of November

2, 2018, the court is left to guess on what, if any, basis Plaintiff contends that Defendants

did not have a compelling governmental interest in restricting Plaintiff’s speech or that less

restrictive means existed for furthering that interest. For instance, although Plaintiff

maintains that he wished to speak on “taxation and representation issues” (Doc. 11 at 4),

he has not alleged facts regarding the agenda of the November 6, 2018, City Council

meeting; the stated purposes, if any, of the restrictions placed on his right to speak on that

date or about those topics; and the availability of other channels of communication,

including written communications and attendance at other City Council meetings. See Burk

v. Augusta-Richmond Cnty., 365 F.3d 1247, 1251 (11th Cir. 2004); Cornelius, 473 U.S. at

800; see also, e.g., Vazzo v. City of Tampa, Case No. 8:17-cv-2896-T-02AAS, 2019 WL

1048294, at *6 (M.D. Fla. Jan. 30, 2019), report and recommendation adopted sub nom.

Vazzo v. City of Tampa, Fla., Case No. 8:17-cv-2896-T-02AAS, 2019 WL 1040855 (M.D.

Fla. Mar. 5, 2019).

Plaintiff has twice amended his original complaint. For the reasons stated herein,

the court concludes that the allegations of Plaintiff’s second amended complaint fail to

provide sufficient factual detail to permit a finder of fact to determine whether the

complained-of conduct violated Plaintiff’s right to freedom of speech. Accordingly, it is

the RECOMMENDATION of the Magistrate Judge that this matter be DISMISSED prior

to service of process in accordance with 28 U.S.C. § 1915(e)(2)(B) and that Plaintiff’s

Motion for Judicial Help and Issuance of a FRCP 16 Scheduling Order (Doc. 9) be

DENIED as MOOT.

It is further ORDERED that the parties shall file any objections to this

Recommendation on or before January 6, 2020. A party must specifically identify the

factual findings and legal conclusions in the Recommendation to which objection is made;

frivolous, conclusive, or general objections will not be considered. Failure to file written

objections to the Magistrate Judge’s findings and recommendations in accordance with the

provisions of 28 U.S.C. § 636(b)(1) shall bar a party from a de novo determination by the

District Court of legal and factual issues covered in the Recommendation and waives the

right of the party to challenge on appeal the district court’s order based on unobjected-to

factual and legal conclusions accepted or adopted by the District Court except upon

grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.

1982); 11th Cir. R. 3-1; See Stein v. Lanning Securities, Inc., 667 F.2d 33 (11th Cir. 1982).

See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).

Done, on this the 19th day of December, 2019.

/s/ Susan Russ Walker

Susan Russ Walker

United States Magistrate Judge