Myers v. City of Naples, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

GREGORY B. MYERS,

Plaintiff,

v. Case No: 2:24-cv-285-JES-KCD

CITY OF NAPLES, FLORIDA,

TERESA HEITMANN, RALF

BROOKES, JAY BOODHESHWAR,

ERICA MARTIN, and NAPLES

COMMUNITY HOSPITAL, INC.,

Defendants.

OPINION AND ORDER

This matter comes before the Court on review of defendants’

Joint Motion to Dismiss Plaintiff’s Amended Complaint (Doc. #4)

filed on May 14, 2024. Plaintiff filed a Response in Opposition

(Doc. #23) on July 8, 2024.

I.

Jurisdiction is based on the presence of a federal question

(28 U.S.C. § 1331), 28 U.S.C. § 1343 (for actions dealing with

civil rights granted under 42 U.S.C. § 1985), 42 U.S.C. § 1983, as

well as 42 U.S.C. § 1985 (conspiracy to impede official duties,

obstructing justice, intimidation, and to deprive persons of

1

rights) . Jurisdiction over state claims is asserted under 28

U.S.C. § 1367 for supplemental claims.

On August 26, 1887, the “Plan of Naples” was filed in Collier

County Records. On February 7, 2024, the City of Naples, through

its City Council, passed and adopted Ordinance 2024-15299 to

determine the rezoning petition of 13.72 acres from the medical

district to the public service district for a portion of the

property owned by Naples Community Hospital. The rezone ordinance

was signed and filed with the City Clerk on March 1, 2024. On the

same day, the City Council also considered a conditional use

petition for the development of a community hospital to be known

as the Naples Community Hospital Heart, Vascular, and Stroke

Institute in the public service district. The City Council voted

to adopt the resolution and it was filed with the City Clerk on

April 1, 2024. A site plan petition for the community hospital

was also considered and filed with the Clerk on the same day.

In Count I, plaintiff alleges a breach of contract by

defendants because he is a beneficiary with vested rights in the

Plan of Naples and defendants breached the Plan. Counts II and

III allege a violation of due process (procedural and substantive,

1

As there are no conspiracy or civil rights claims based on

race stated in the Amended Complaint, the Court declines to find

that federal jurisdiction is present under 28 U.S.C. § 1343 or 42

U.S.C. § 1985.

respectively) pursuant to 42 U.S.C. § 1983 because plaintiff has

a legal interest in the property that was rezoned by Ordinance

2024-15299. Plaintiff alleges that defendants, acting under color

of law, failed to follow law in connection with the adoption of

Ordinance 2024-15299, depriving plaintiff of the value and use of

the property without rational basis. Count IV alleges an

unconstitutional taking without just compensation under the Fifth

Amendment of the U.S. Constitution pursuant to 42 U.S.C. § 1983.

Count V seeks declaratory relief under Florida law because

plaintiff has vested rights in the City of Naples Comprehensive

Plan and a legal interest in the property subject to rezoning.

Plaintiff alleges that the rezoning ordinance is not consistent

with the Naples Comprehensive Plan and plaintiff has suffered

injury.

II.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted). To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief

above the speculative level.” Id. at 555. See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citations omitted).

“In ruling on a Rule 12(b)(1) motion to dismiss for lack of

jurisdiction, it is within the district court's discretion to

devise a method for making a determination with regard to the

jurisdictional issue.” Kennedy v. Floridian Hotel, Inc., 998 F.3d

1221, 1232 (11th Cir. 2021) (quotation marks and citation omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff, Erickson v. Pardus,

551 U.S. 89 (2007), but “[l]egal conclusions without adequate

factual support are entitled to no assumption of truth,” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff, Erickson v. Pardus,

551 U.S. 89 (2007), but “[l]egal conclusions without adequate

factual support are entitled to no assumption of truth,” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678. “Factual allegations that are merely consistent

with a defendant’s liability fall short of being facially

plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted). Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,

a court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief.” Iqbal, 556

U.S. at 679.

A pleading drafted by a party proceeding unrepresented (pro

se) is held to a less stringent standard than one drafted by an

attorney, and the Court will construe the documents filed as a

complaint and amended complaint liberally. Jones v. Fla. Parole

Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015).

III.

Section 1983 provides a private cause of action against any

person who, under color of state law, deprives a person of “any

rights, privileges, or immunities secured by the Constitution and

laws” of the United States. 42 U.S.C. § 1983. “To state a claim

for relief in an action brought under § 1983, plaintiffs must

establish that they were deprived of a right secured by the

Constitution or laws of the United States, and that the alleged

deprivation was committed under color of state law. Like the

state-action requirement of the Fourteenth Amendment, the under-

color-of-state-law element of § 1983 excludes from its reach merely

private conduct, no matter how discriminatory or wrongful.” Focus

on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263,

1276–77 (11th Cir. 2003) (citation omitted). “A constitutional

claim brought pursuant to § 1983 must begin with the identification

of a specific constitutional right that has allegedly been

infringed.” DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1288

(11th Cir. 2019) (quoting Paez v. Mulvey, 915 F.3d 1276, 1285 (11th

Cir. 2019)).

Plaintiff’s federal question claims are based on a lack of

procedural due process, substantive due process, and an

unconstitutional taking. The Court addresses each in turn.

A. Due Process

“The Due Process Clause provides two different kinds of

constitutional protections: procedural due process and substantive

due process. [] A violation of either of these two kinds of

protection may form the basis for a suit under § 1983.” Maddox v.

Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013) (citing McKinney v.

Pate, 20 F.3d 1550, 1555 (11th Cir. 1994) (en banc)). “In

substantive due process cases, the claimant seeks compensatory

damages for the value of the deprived right. In procedural due

process cases, however, although the claimant may seek

compensatory damages, the primary relief sought is equitable.”

McKinney, at 1557.

1) Procedural Due Process

A claim for deprivation of property without due process is a

claim of procedural due process. “‘Procedural due process rules

are not meant to protect persons from the deprivation, but from

the mistaken or unjustified deprivation of life, liberty, or

property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). ‘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) (quoting Grayden v.

Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003)).” Am. Fed'n of Lab.

& Cong. of Indus. Organizations v. City of Miami, FL, 637 F.3d

1178, 1186 (11th Cir. 2011).

“A local government or municipality may be sued when the

execution of a policy or custom is the “moving force of the

constitution violation” “whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official

policy, inflicts the injury that the government as an entity is

responsible under § 1983.” Monell v. Dep't of Soc. Servs. of City

of New York, 436 U.S. 658, 694 (1978). “If a facially-lawful

municipal action is alleged to have caused a municipal employee to

violate a plaintiff's constitutional rights, the plaintiff must

establish ‘that the municipal action was taken with ‘deliberate

indifference’ as to its known or obvious consequences.’” Am. Fed'n

of Lab. & Cong., 637 F.3d at 1187 (citation omitted) (quoting Bd.

Of Cnty. Comm’rs v. Brown, 520 U.S. 397, 407 (1997)).

“[A] procedural due process violation is not complete ‘unless

and until the State fails to provide due process.’ In other words,

the state may cure a procedural deprivation by providing a later

procedural remedy; only when the state refuses to provide a process

sufficient to remedy the procedural deprivation does a

constitutional violation actionable under section 1983 arise.”

McKinney, 20 F.3d at 1557 (internal citation omitted).

Plaintiff generically alleges that he has a “legal interest”

in property owned by Naples Community Hospital and “[t]he

Defendants, acting under color of law, failed to follow federal,

state, and local law in connection with the adoption of Rezone

Ordinance 2024-15299.” (Doc. #3 at ¶ 30.) The general allegations

identify several ordinances, but no facts are stated to support

plaintiff’s legal interest in the property, or what state action

was taken with deliberate indifference, or whether the state

refused to remedy any alleged procedural deprivation. The

documents attached to the Amended Complaint indicate that the

property is owned by Naples Community Hospital, a public hearing

was held to allow the “public an opportunity to present testimony

and evidence”, and the petition was approved at the first reading

and hearing. Simply identifying the Ordinance’s passage and

adoption, which is constitutional on its face, does not support a

claim of a policy or custom that deprived plaintiff of any

constitutionally protected right. In any event, the failure to

allege that adequate state remedies were not available is alone

detrimental to plaintiff’s claim. The motion to dismiss Count II

will be granted as plaintiff has failed to state a claim for a

deprivation of procedural due process.

2) Substantive Due Process

“The substantive component of the Due Process Clause protects

those rights that are ‘fundamental,’ that is, rights that are

‘implicit in the concept of ordered liberty.’” McKinney v. Pate,

20 F.3d 1550, 1556 (11th Cir. 1994) (citation omitted). “In

particular, ‘areas in which substantive rights are created only by

state law (as is the case with tort law and employment law) are

not subject to substantive due process protection under the Due

Process Clause because ‘substantive due process rights are created

only by the Constitution.’” Lewis v. Brown, 409 F.3d 1271, 1272–

73 (11th Cir. 2005) (citation omitted). “‘Non-legislative’, or

executive, ‘deprivations of state-created rights, which would

include land-use rights, cannot support a substantive due process

claim, not even if the plaintiff alleges that the government acted

arbitrarily and irrationally.’” Id. at 1273.

The test to distinguish between executive and legislative

acts is: (1) “Executive acts characteristically apply to a limited

number of persons (and often to only one person); executive acts

typically arise from the ministerial or administrative activities

of members of the executive branch;” and (2) “Legislative acts, on

the other hand, generally apply to a larger segment of—if not all

of—society; laws and broad-ranging executive regulations are the

most common examples.” McKinney, 20 F.3d at 1557 n.9.

Plaintiff states that he has a legal interest in the property

subject to rezone ordinance 2024-15299, and in the same sweeping

manner as Count II, defendants “failed to follow federal, state,

and local law in connection with Rezone Ordinance 2024-15299.”

(Doc. #3-1, Exh. D.) Plaintiff does not identify what fundamental

right is violated. The property is owned by Naples Community

Hospital and the petition was approved at the first reading and

hearing. An ordinance dealing with the rezoning of a specific

property owned by the hospital cannot support a procedural due

process claim by plaintiff as it was not a legislative action

applicable to the general public.

B. Takings Clause

Count IV is brought under the Fifth Amendment through 42

U.S.C. § 1983. Under the Takings Clause, “nor shall private

property be taken for public use, without just compensation.” U.S.

CONST. amend. V.

When the government wants to take private

property to build roads, courthouses, or other

public projects, it must compensate the owner

at fair market value. The just compensation

requirement comes from the Fifth Amendment's

Takings Clause, which provides: “nor shall

private property be taken for public use,

without just compensation.” By requiring the

government to pay for what it takes, the

Takings Clause saves individual property

owners from bearing “public burdens which, in

all fairness and justice, should be borne by

the public as a whole.” Armstrong v. United

States, 364 U.S. 40, 49 (1960).

The Takings Clause’s right to just

compensation coexists with the States’ police

power to engage in land-use planning. (Though

at times the two seem more like in-laws than

soulmates.) While States have substantial

authority to regulate land use, see Village of

Euclid v. Ambler Realty Co., 272 U.S. 365

(1926), the right to compensation is triggered

if they “physically appropriat[e]” property or

otherwise interfere with the owner's right to

exclude others from it, Cedar Point Nursery v.

Hassid, 594 U.S. 139, 149–152 (2021). That

sort of intrusion on property rights is a per

se taking. Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 426 (1982).

Different rules apply to State laws that

merely restrict how land is used. A use

restriction that is “reasonably necessary to

the effectuation of a substantial government

purpose” is not a taking unless it saps too

much of the property's value or frustrates the

owner's investment-backed expectations. Penn

Central Transp. Co. v. New York City, 438 U.S.

104, 123, 127 (1978); see also Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1016

(1992) (“[T]he Fifth Amendment is violated

when land-use regulation does not

substantially advance legitimate state

interests or denies an owner economically

viable use of his land” (internal quotation

marks omitted)).

Sheetz v. Cnty. of El Dorado, California, 601 U.S. 267, 273–74

(2024). Plaintiff repeatedly uses “legal interest in the property”

but never once asserts or claims ownership of the property rezoned.

Without a clear statement that plaintiff’s private property has

been taken without just compensation, no such claim can exist.

The motion to dismiss will be granted.

Iv.

The Court finds no federal subject matter jurisdiction is

stated because plaintiff has failed to allege a claim under 42

U.S.C. §$ 1983, or any other federal statute. As such, the Amended

Complaint will be dismissed without prejudice. Plaintiff will be

provided an opportunity to amend.

Accordingly, it is now

ORDERED :

Defendant’s Joint Motion to Dismiss Plaintiff’s Amended

Complaint (Doc. #4) is GRANTED, and the Amended Complaint is

dismissed without prejudice to filing a Second Amended Complaint

within FOURTEEN (14) DAYS of this Opinion and Order.

DONE AND ORDERED at Fort Myers, Florida, this 24th day of

July 2024.

fo ao Afr

aff le fy dE, Ah Zook

J9GHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

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