Cowart v. Duro

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WILLIAM D. COWART, III,

Plaintiff,

v. CASE NO. 3:24-cv-472-MMH-SJH

STONE DURO, etc., et al.,

Defendants.

________________________________/

ORDER

THIS CAUSE is before the Court on review of Plaintiff’s Amended Complaint

for a Civil Case (“Amended Complaint”). Doc. 13. For the reasons herein, the Court

will direct Plaintiff to file a second amended complaint.

I. Background

Plaintiff, proceeding pro se, filed a Complaint for Violation of Civil Rights, Doc.

1 (“Complaint”), and moved to proceed in forma pauperis (“IFP”), Docs. 2, 5. The

Court eventually entered an Order allowing Plaintiff to proceed IFP, staying the

service-of-process provision in 28 U.S.C. § 1915(d) and the service-of-process period

in Rule 4(m) of the Federal Rules of Civil Procedure (“Rule(s)”), and directing Plaintiff

to file an amended complaint (“Prior Order”). Doc. 10. Plaintiff filed his Amended

Complaint on Augst 30, 2024. Doc. 13.

II. Applicable Law

As outlined in the Prior Order, the Court is obligated to review the case pursuant

to 28 U.S.C. § 1915(e)(2) and to dismiss it if the Court determines the action “(i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii)

seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.

§ 1915(e)(2)(B); see also Brown v. Hall, No. 3:23-cv-537-BJD-LLL, 2023 WL 5069482,

at *1 (M.D. Fla. May 16, 2023).

A pleading stating “a claim for relief must contain: (1) a short and plain

statement of the grounds for the court’s jurisdiction …; (2) a short and plain statement

of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief

sought ….” Fed. R. Civ. P. 8(a); see also Gamble v. Gamble, No. 8:09-cv-369-T-30TGW,

2009 WL 580323, at *1 (M.D. Fla. Mar. 6, 2009). In addition, a party must state its

claims “in numbered paragraphs, each limited as far as practicable to a single set of

circumstances.” Fed. R. Civ. P. 10(b); see also Meide v. Pulse Evolution Corp., No. 3:18-

cv-1037-J-34MCR, 2019 WL 4918264, at *2 (M.D. Fla. Oct. 4, 2019). Rules 8 and 10

“work together to require the pleader to present his claims discretely and succinctly[.]”

Palmer v. Albertson’s LLC, 418 F. App’x 885, 889 (11th Cir. 2011) (quotation omitted).

In considering whether dismissal for failure to state a claim is warranted under

§ 1915(e)(2)(B)(ii), the same standards governing dismissal under Rule 12(b)(6) of the

Federal Rules of Civil Procedure apply. See Alba v. Montford, 517 F.3d 1249, 1252 (11th

Cir. 2008). A “complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Labels and

conclusions” or “a formulaic recitation of the elements of a cause of action” that

amount to “naked assertions” will not do. Id. Rather, “[a] claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. Rule 8(a) of the

Federal Rules of Civil Procedure demands “more than an unadorned, the defendant

unlawfully harmed me accusation.” Id. The well-pled allegations must nudge the claim

“across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Courts

accept “all factual allegations in the complaint as true” but “need not apply this rule

to legal conclusions.” Anthony v. Am. Gen. Fin. Servs., Inc., 626 F.3d 1318, 1321 (11th

Cir. 2010).

Though pro se pleadings are construed liberally: (i) such liberal construction does

not permit a court “to serve as de facto counsel for a party, or to rewrite an otherwise

deficient pleading in order to sustain an action”; and (ii) pro se litigants must “comply

with the rules of procedure.” LaCroix v. W. Dist. of Ky, 627 F. App’x 816, 818 (11th Cir.

2015); Carvel v. Godley, 404 F. App’x 359, 361 (11th Cir. 2010).

III. Discussion

The Prior Order directed Plaintiff to file an amended complaint, as his original

Complaint constituted an impermissible shotgun pleading. See Doc. 10 at 4-10.

Though improved somewhat from the Complaint with respect to some of the issues

identified in the Prior Order, for the reasons herein, the Amended Complaint remains

deficient. Accordingly, Plaintiff will be given another opportunity to file an

appropriate pleading and directed to file a second amended complaint.

In the Amended Complaint, Plaintiff sues four defendants, Municipal Code

Enforcement Officers Stone Duro (“Duro”) and Tiffany Sen (“Sen”), their supervisor

Robert Bautochka (“Bautochka”), and Special Magistrate Laura Boeckman (“Special

Magistrate Boeckman”). Doc. 13 at 2. In Count One, Plaintiff alleges Duro and Sen,

seeking to get evidence against Plaintiff, entered his private property on September 19,

2023, without a warrant. Id. at 6-7. Plaintiff alleges that he called the Jacksonville

Sherriff’s Office (“JSO”) for assistance, and that Duro and Sen complied with the

instructions from JSO officers that they leave Plaintiff’s property. Id. at 6. Based on

these allegations, Plaintiff alleges that Duro and Sen violated his Fourth and Fifth

Amendment rights and committed “criminal trespass.” See id. at 6-7.

In Count Two, Plaintiff seeks relief under 42 U.S.C. § 1983 (§ 1983). Id. at 8.

This claim is premised on an administrative municipal code enforcement hearing on

June 25, 2024. Id. Special Magistrate Boeckman presided over the hearing, which was

prosecuted by Bautochka. Id. Plaintiff alleges that Special Magistrate Boeckman made

rulings adverse to Plaintiff, including imposition of a fine and lien, which Plaintiff

appealed to the Florida Circuit Court, Fourth Judicial Circuit. Id. Plaintiff alleges that

Special Magistrate Boeckman’s rulings were “illegal” and “brought dishonor to the

judiciary[.]” Id. at 8-9. He also alleges, among other things, that the underlying

proceedings violated his rights to due process. Id. at 9. He alleges all four defendants

“appear to have acted in unison being employees of The City of Jacksonville Florida

Inc in conspiring against PLAINTIFF’s Constitutionally protected rights per 18 U.S.

Code 241.” Id. at 9.

Plaintiff seeks various relief including: a declaratory judgment; an order

requiring the dismissal of all charges against Plaintiff by the Jacksonville Municipal

Code Compliance division; an order that each defendant be fined, jailed, and removed

from office; an order that Plaintiff be paid for his attendance at the June 25, 2024,

hearing; an order requiring Plaintiff receive a jury trial (apparently with respect to the

charges he demands be dismissed); and an order requiring the City of Jacksonville to

train and certify its municipal compliance officers and to pay Plaintiff $50 million. Id.

at 11.

Even liberally construed, Plaintiff’s Amended Complaint is deficient in several

respects.1 Count One seeks relief against Stone and Duro for violation of § 1983 and/or

Florida common law.2 It appears Plaintiff may allege that Stone and Duro committed

trespass or a related tort and/or violated his Fourth Amendment rights under color of

law in entering his property to search for evidence without a warrant.3 In some

circumstances, such allegations may support a claim for relief. See, e.g., Sanchez v. Cnty.

1 This Order is not meant to address all potential deficiencies in the Amended

Complaint.

2 Count Two is expressly brought under § 1983. Count One is not, but liberally

construed, I will also consider it under § 1983 insofar as Plaintiff alleges Stone and Duro

violated his constitutional rights by entering his property looking for evidence against him

without a warrant. In any second amended complaint, Plaintiff should, as previously

instructed, separate discrete claims into different counts where necessary for clarity. See Doc.

10 at 9.

3 Plaintiff also mentions the Fifth Amendment but the facts he alleges appear to pertain

to the Fourth, not the Fifth, Amendment. See Doc. 13 at 6-7.

of Volusia, 331 So. 3d 853, 854-55 (Fla. 5th DCA 2021); Steppe v. City of Miami, Fla.,

No. 09-23305-CIV, 2011 WL 13217972, at *3 & n.3 (S.D. Fla. Sept. 13, 2011);

Youngblood v. Fla., No. 3:01-cv-1449-J-16MCR, 2005 WL 8159645, at *5 (M.D. Fla.

Mar. 17, 2005). However, Plaintiff alleges Stone and Duro complied with the

instructions of JSO officers and left his property, and thus does not appear that he was

ultimately subjected to any unlawful search on September 19, 2023. Doc. 13 at 6.4

Moreover, Plaintiff does not appear to seek any relief for any violations alleged in

Count One. See id. at 11.5 To the contrary, the only apparent relief Plaintiff seeks

against Stone and Duro is that they be fined and imprisoned under 18 U.S.C. § 241

and removed from office. The Court does not have authority to award such relief.

Rather, as set forth in the Prior Order, § 241 is a criminal statute that provides no

private cause of action or basis for relief. See Doc. 10 at 5 n.5. Accordingly, and given

the remaining deficiencies outlined herein otherwise requiring repleading, Plaintiff will

be given the opportunity to address the claims and relief sought as to Count One in a

second amended complaint.

As to the remaining claims and parties, Count Two of the Amended Complaint

4 Absent an unlawful search, the actions Plaintiff alleges might constitute a state-law

tort such as trespass, but they would not violate the Constitution or give rise to a § 1983 claim.

And without a § 1983 claim to assert a federal question and give rise to supplemental

jurisdictional, Plaintiff has not alleged an independent basis for original jurisdiction over any

state-law claims.

5 The allegations in Count One may support a claim for nominal damages, if requested.

See Sanchez, 331 So. at 854; Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003). If Plaintiff

seeks nominal damages, he should make this clear and do so expressly in his second amended

complaint.

seeks relief under § 1983. “To state a claim under section 1983, [Plaintiff] must allege

that an act or omission, committed by a person acting under color of state law,

deprived [him] of a right, privilege, or immunity secured by the Constitution or a

federal statute.” A.W. by & Through J.W. v. Coweta Cnty. Sch. Dist., 110 F.4th 1309, 1315

(11th Cir. 2024). There are several deficiencies.

First, the precise nature of Plaintiff’s claims and contentions are not entirely

clear, but any claim must be supported by facts, not mere conclusions, plausibly stating

a claim of entitlement to relief. See Iqbal, 556 U.S. at 678; Anthony, 626 F.3d at 1321.6

The gravamen of Plaintiff’s allegations in Count Two, however, appears to be that the

state-court code-enforcement proceedings against him are improper and should either

be enjoined by this Court or overturned on appeal by this Court. But this Court

generally lacks jurisdiction to sit as a state appellate court or to enjoin state-court code

enforcement proceedings. See Renfroe v. Nationstar Mortg., LLC, No. 3:19-cv-521-J-

34JBT, 2019 WL 5456495, at *3-4 (M.D. Fla. Oct. 24, 2019) (explaining Rooker-

Feldman and Younger abstention doctrines and federal court’s lack of jurisdiction “to

review, overturn, or interfere with” state-court action).7 For similar reasons, and for

6 Plaintiff must allege violation of a federal right; allegations that state laws were

violated are insufficient. See Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir. 2002).

7 To the extent a state-court judgment is final, “‘[t]he Rooker-Feldman doctrine makes

clear that federal district courts cannot review state court final judgments because that task is

reserved for state appellate courts or, as a last resort, the United States Supreme Court.’” Id.

at * 3 (quotation omitted). Alternatively, to the extent of an ongoing state-court action, “[t]he

Younger doctrine requires federal courts to abstain from exercising jurisdiction when doing so

would cause ‘undue interference with state proceedings.’” Id., at *4 (citation omitted).

the reasons discussed above with respect to Stone and Duro, most of the relief

requested by Plaintiff—such as dismissal of charges against him or fining, imprisoning,

or stripping titles or offices from Defendants—is not available. See Doc. 13 at 11.

In addition, to the extent Plaintiff seeks relief against Special Magistrate

Boeckman, such is barred by judicial or quasi-judicial immunity. “Judges are

absolutely immune from civil liability under section 1983 for acts performed in their

judicial capacity, provided such acts are not done in the “clear absence of all

jurisdiction.” Roland v. Phillips, 19 F.3d 552, 555 (11th Cir. 1994) (quotation omitted).

Derivative of judicial immunity, quasi-judicial immunity also provides absolute

immunity to a § 1983 claim, such that nonjudicial officials acting within the scope of

their authority “are encompassed by a judge’s absolute immunity when their official

duties ‘have an integral relationship with the judicial process.’” Id. (citation omitted).

Thus, “the absolute quasi-judicial immunity of a nonjudicial official [is determined]

through a functional analysis of the action taken by the official in relation to the judicial

process.” Id.

Florida law has created “administrative boards to impose administrative fines

and other noncriminal penalties to provide an effective and inexpensive method of

enforcing county and municipal codes and ordinances where a pending or repeated

violation persists.” Lindbloom v. Manatee Cnty., 808 F. App’x 745, 750 (11th Cir. 2020)

(citing Fla. Stat. § 162.02). The “special magistrate has the same status as an

enforcement board.” Id. (citing Fla. Stat. § 162.03(2)). Enforcement proceedings are

“initiated by a code inspector who notifies the violator and gives him a reasonable time

to comply, and if the violation continues, the code inspector notifies the special

magistrate and requests a hearing.” Id. at 750-51 (citing Fla. Stat. § 162.06(2)). The

formal rules of evidence do not apply at the hearing; the special magistrate takes

testimony from the code inspector and the alleged violator and “must issue findings of

fact, conclusions of law, and an order affording the proper relief.” Id. (citing Fla. Stat.

§ 162.07(3)-(4)). Upon notice “by the code inspector that a previous order has not been

complied with, the special magistrate can assess fines up to $250 per day that the

violation continues.” Id. at 751 (citing Fla. Stat. § 162.09(1), (2)(a)). An appeal of the

final administrative order may be taken to the Florida Circuit Court. Id. In short, then,

under Florida law, special magistrates have “the authority … to adjudicate code

violations[.]” Id.; see also Jacksonville, Fla., Mun. Code ch. 518. Applying a functional

analysis, Plaintiff’s allegations against Special Magistrate Boeckman are in turn barred

by absolute quasi-judicial immunity. See Fuller v. Bayona, No. 23-24251-CIV, 2024 WL

4057602, at *2 (S.D. Fla. Sept. 5, 2024). Relatedly, claims directed to Bautochka’s

prosecution of Plaintiff are barred by absolute prosecutorial immunity. See JERMC

LTD v. Town of Redington Shores, No. 8:19-cv-688-T-60AAS, 2020 WL 4227429, at *2

(M.D. Fla. July 23, 2020) (holding defendant was “entitled to prosecutorial immunity

for his role in code enforcement proceedings” which “will absolutely shield his actions

in initiating prosecution or presenting the Town’s case”).

Furthermore, and addressing another of Plaintiff’s allegations, the foregoing

“procedure satisfies due process because the Florida Circuit Court has the power to

remedy any procedural deficiencies and cure violations of due process.” Club Madonna,

Inc. v. City of Miami Beach, 924 F.3d 1370, 1379 (11th Cir. 2019);8 see also Lindbloom,

808 F. App’x at 750 (“A violation of procedural due process does not become complete

unless and until the state refuses to provide adequate due process. … An appeal of a

final administrative order to the Florida State Circuit Court satisfies due process

because the circuit court has the power to remedy any procedural defects and cure due

process violations.”).9

Finally, Plaintiff’s overarching contention in Count Two, that all four

defendants “appear to have acted in unison being employees of the City of Jacksonville

Florida Inc in conspiring against PLAINTIFF’s Constitutionally protected rights per

18 U.S.C. Code 241” is wholly inadequate. Doc. 13 at 9. First, as discussed in the

8 Though not entirely clear, Plaintiff appears to allege a violation of procedural due

process. He alleges, however, that he has filed an appeal in Florida Circuit Court and that “a

copy [of this appeal] was delivered” to this Court as “evidence of conspiracy against”

Plaintiff’s rights. Doc. 13 at 8. Plaintiff does not allege that he was unable to appeal or refused

due process by the state courts; his submission thus appears to reflect due process, not a

conspiracy to deprive due process. To the extent the Amended Complaint could be construed

to allege any substantive due process violation, land-use rights are generally non-fundamental,

state-created rights not amenable to a substantive due process challenge. See Hillcrest Prop.,

LLP v. Pasco Cnty., 915 F.3d 1292, 1297-98 (11th Cir. 2019). Though there is a potential

exception for due-process-violating legislative action, Plaintiff’s allegations challenge an

individualized, as-applied executive enforcement action. See id. at 1299-1302.

9 Plaintiff also references the Seventh Amendment in his Amended Complaint. Doc.

13 at 9. “[T]he Seventh Amendment ‘governs proceedings in federal court, but not in state

court.’” Sowers v. R.J. Reynolds Tobacco Co., 975 F.3d 1112, 1127 n.8 (11th Cir. 2020) (quoting

Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 418 (1996)). Moreover, for the reasons

discussed elsewhere, Plaintiff has not plausibly alleged an actionable due-process violation,

and the Court cannot interfere with a state-court action or overrule a state-court judgment.

See Springer v. Perryman, 401 F. App’x 457, 457-58 (11th Cir. 2010); Beeks v. HMC Assets, LLC,

No. 3:19-CV-774-J-34MCR, 2019 WL 7567929, at *2 (M.D. Fla. Sept. 5, 2019), report and

recommendation adopted, 2019 WL 4877379 (M.D. Fla. Oct. 3, 2019).

Prior Order and previously herein, Plaintiff cannot seek relief under § 241. See Doc. 10

at 5 n.5. Even if he could, in conspiracy cases, a defendant must be informed of the

nature of the conspiracy alleged; it is not enough to simply aver a conspiracy existed.

See Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984); see also Grappell v. Carvalho,

847 F. App’x 698, 702 (11th Cir. 2021); Pittman v. State Farm Fire & Cas. Co., 662 F.

App’x 873, 880 (11th Cir. 2016). Thus, to state a conspiracy claim under § 1983, a

plaintiff must “make particularized allegations” supported by well-pled facts to

plausibly allege that the defendants “reached an understanding” and willfully

participated in an agreement to violate the plaintiff’s federal rights. Pittman, 662 F.

App’x at 880. “Vague and conclusory allegations that merely suggest a § 1983

conspiracy are insufficient[.]” Id. The alleged conspiracy further “fails under the

intracorporate conspiracy doctrine[,]” which “holds that acts of corporate agents are

attributed to the corporation itself, thereby negating the multiplicity of actors necessary

for the formation of a conspiracy.” Denney v. City of Albany, 247 F.3d 1172, 1190 (11th

Cir. 2001) (quotation omitted). Simply put, under this doctrine, which “applies to

public entities” such as a “City and its personnel[,]” the City of Jacksonville “cannot

conspire with its employees, and its employees, when acting in the scope of their

employment, cannot conspire among themselves.” Id. (quotation omitted); see also

Crenshaw v. Lewis, No. 8:14-cv-1941-T-27AEP, 2016 WL 521531, at *4 (M.D. Fla. Feb.

5, 2016). Moreover, it appears that Plaintiff seeks various relief against the City of

Jacksonville. Doc. 13 at 11. However, though named as a defendant in his original

Complaint, the City of Jacksonville is not a named defendant in the Amended

Complaint.10 In preparing a second amended complaint, Plaintiff should consider that,

as stated in the Prior Order, “[a]lthough personal participation is not specifically

required for liability under § 1983, there must be a causal connection between the

defendant named and the injury sustained.” See Doc. 10 at 9 n.9 (citing Roy v. Ivy, 53

F.4th 1338, 1351-52 (11th Cir. 2022)). In addition, “‘to impose § 1983 liability on a

municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2)

that the municipality had a custom or policy that constituted deliberate indifference to

that constitutional right; and (3) that the policy or custom caused the violation.’” Id.

(quoting McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)).

IV. Conclusion

For the reasons herein, I will direct Plaintiff to file a second amended complaint

curing the deficiencies described above, if possible. In doing so, Plaintiff should, in

addition to the issues identified herein, also comply with the instructions in the Court’s

Prior Order. Plaintiff should note that his second amended complaint will supersede

his Amended Complaint and become the operative pleading. See Hoefling v. City of

Miami, 811 F.3d 1271, 1277 (11th Cir. 2016). Thus, his second amended complaint

must be complete and must include all related claims he wishes to pursue, as well as

all facts in support and relief sought, in a single submission.

10 Plaintiff appears to sue each of the individual defendants in an individual capacity.

Any official-capacity claims would be the equivalent of a claim against the City of

Jacksonville rather than the individual personally. See McCarthy v. City of Cordele, Georgia, 111

F.4th 1141, 1146 (11th Cir. 2024); Hodges v. Hunter, No. 3:23-cv-1375-MMH-PDB, 2024 WL

3890007, at *3 (M.D. Fla. Aug. 21, 2024).

If Plaintiff fails to file a second amended complaint in compliance with this

Order and all applicable rules and law, I will likely recommend that the District Judge

dismiss this case without prejudice.

Accordingly, it is ORDERED:

1. On or before November 1, 2024, Plaintiff shall file a second amended

complaint in compliance with this Order and all applicable rules and law.

2. Plaintiffs failure to do so may result in my recommendation that this

action be dismissed without prejudice.

DONE AND ORDERED 1n Jacksonville, Florida, on October 11, 2024.

[Z J. Horovitz

United States Magistrate Judge

Copies to:

Pro Se Plaintiff

13