# Myers v. City of Naples, Florida

> District Court, M.D. Florida · July 24, 2024

URL: https://www.frixlaw.com/law-library/cases/10642477

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 24, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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

Copies:
Parties of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642477. Public record. Not legal advice.