# Lewis v. Antoine (MAG+)

> District Court, M.D. Alabama · December 19, 2019

URL: https://www.frixlaw.com/law-library/cases/10630034

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** December 19, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10630034

## How later opinions describe it (automated extraction)

- finding that under the Federal Rules of Civil Procedure an amended complaint supersedes the original complaint

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10630034. Public record. Not legal advice.