# Scheffler v. Chitwood

> District Court, M.D. Florida · October 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10643326

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 22, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

TROY K. SCHEFFLER,

Plaintiff,

v. Case No: 6:23-cv-1634-JSS-DCI

MICHAEL J. CHITWOOD, JOHN
DOE, and VOLUSIA COUNTY,

Defendants.
___________________________________/
ORDER
Plaintiff, Troy K. Scheffler, proceeding pro se, moves to file a third amended
complaint, (see Dkt. 56), and to enlarge the scheduling order so he may do so past the
deadline for amending the pleadings, (see Dkt. 55). Defendants Michael J. Chitwood
and Volusia County oppose the motions. (See Dkts. 61 & 62.) The fictitious
Defendant, John Doe, has not been served in this case. (See Dkt. 67 at 15 n.1.) For
the reasons outlined below, the court denies Plaintiff’s motions and dismisses the
claims against Doe.
BACKGROUND
Plaintiff initiated this action in August 2023 by filing a three-count complaint
against Defendants under 42 U.S.C. § 1983. (See Dkt. 1.) The initial complaint alleged
that Chitwood and Doe “hid[] and delete[d] comments” that Plaintiff had posted on
the Volusia Sheriff’s Office Facebook page and thus “block[ed] . . . [his] account from
making public posts.” (Id. ¶¶ 145, 152, 158; accord id. ¶¶ 162–63, 176.) The initial
complaint asserted that this conduct violated the First Amendment by “denying
[Plaintiff] his right to openly and publicly protest, express, . . . and otherwise make
grievance with regard to . . . the government” (Count I) and violated the Fourteenth

Amendment by denying Plaintiff the “equal opportunity to participate” on the
Facebook page (Count II). (Id. ¶¶ 148, 162–63, 166.) The initial complaint further
asserted that the County was liable for these violations because it “ha[d] a persistent
pattern and practice” and “systematic policy of [First] and [Fourteenth] Amendment
suppression” (Count III). (Id. ¶¶ 171, 177.) The initial complaint sought various forms

of relief, including compensatory and punitive damages, injunctive relief, and legal
fees. (Id. at 33–34.)
In November 2023, the court issued the Case Management and Scheduling
Order in this case. (Dkt. 18.) The court set a deadline of February 13, 2024, for

motions to add parties or to amend pleadings and a deadline of July 1, 2024, for
discovery. (Id. at 1.) The court
advised that the pendency of a dispositive motion, such as a motion to
dismiss . . . , does not stay the deadline for completion of discovery.
Parties who elect to for[]go discovery on the merits of any claim or
defense due to the pendency of a dispositive motion or for any other
reason, without leave of [the c]ourt, will not be entitled to an
extension . . . .

(Id. at 2.) The court further cautioned:
Motions to extend the dispositive motions deadline or to continue trial
are generally denied. . . . Motions for an extension of other deadlines
established in this order . . . are disfavored. [A] deadline will not be
extended absent a showing of good cause. Failure to complete discovery
within the time established . . . shall not constitute good cause . . . . A
motion to extend an established deadline normally will be denied if the
motion fails to recite that: 1) the additional discovery is necessary for
specified reasons[,] 2) all parties agree that the extension will not affect
the dispositive motions deadline and trial date[,] 3) all parties agree that
any discovery conducted after the dispositive motions date . . . will not
be available for summary judgment purposes[,] and 4) no party will use
the granting of the extension in support of a motion to extend another
date or deadline. The movant must show that the failure to complete
discovery is not the result of lack of diligence in pursuing discovery.

(Id. at 6–7 (citing Fed. R. Civ. P. 16(b) and M.D. Fla. Loc. R. 3.08(a)).)
In December 2023, Plaintiff amended his complaint, (see Dkt. 22), in response
to a motion to dismiss, (see Dkt. 16). The first amended complaint addressed whether
Chitwood and Doe were sued in individual or official capacities, (Dkt. 22 at 1–2), and
added allegations to Counts II and III, (id. at 32–37).
On April 1, 2024, Chitwood and the County moved to dismiss the first amended
complaint for failure to state a claim. (Dkt. 38.) In the motion, Chitwood asserted
qualified immunity for the individual-capacity claims against him. (Id. at 4–12.) Also
on April 1, the court ordered Plaintiff to show cause why the claims against Doe
should not be dismissed for failure to serve Doe. (Dkt. 39.) See Fed. R. Civ. P. 4(m)
(“If a defendant is not served within [ninety] days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.”).
On April 15, 2024, Plaintiff responded to the show-cause order. (Dkt. 40.) He
indicated that because qualified immunity would apply to Doe, Plaintiff had waited to
engage in “formal discovery” pending resolution of the motion to dismiss. (Id. at 2,
4.) Plaintiff further stated that although the parties had engaged in “informal
discovery” and defense counsel knew who Doe likely was, Doe’s identity had not been

disclosed to Plaintiff. (Id. at 2–3.) In addition, Plaintiff represented that to identify
Doe, Plaintiff would “serve his first requests for discovery” “at the same time of the
filing of this response.” (Id. at 3.) On April 17, 2024, Chitwood and the County
represented that on November 27, 2023, they served Plaintiff with their initial

disclosures, which identified a Public Information Officer. (Dkt. 41 ¶ 4.) They further
stated that Plaintiff’s April 15 discovery requests referred to the officer by name. (Id.
¶ 5.)
On April 25, 2024, in response to the April 1 motion to dismiss, Plaintiff moved
to file a second amended complaint. (Dkt. 43.) On June 5, 2024, the court granted

Plaintiff’s motion to amend and denied the April 1 motion to dismiss as moot. (Dkt.
52.) The second amended complaint contains new allegations, including that
Defendants intended the Facebook page to be a public forum and engaged in
viewpoint discrimination, but asserts the same section 1983 claims for the same relief
against Defendants as the initial and first amended complaints. (See Dkt. 43-1.)

On June 17, 2024, Plaintiff filed the instant motions. (Dkts. 55 & 56.) Plaintiff’s
proposed third amended complaint removes Doe, adds four individuals as defendants
in his place, and makes some changes to language in Counts I and II. (See Dkt. 56-2.)
Plaintiff’s two-page motion to enlarge the scheduling order seeks solely to “allow [his]
accompanying [m]otion to [a]mend and [a]dd [p]arties” and purports to incorporate
by reference his memorandum in support of that motion. (Dkt. 55 at 1.) In the
memorandum, Plaintiff acknowledges that the scheduling order set a deadline of
February 13, 2024, to add parties and amend pleadings and a deadline of July 1, 2024,

for discovery but contends that “[d]iscovery did not really start because of” the
qualified-immunity issue. (Dkt. 56-1 at 1.) Plaintiff also complains that Defendants
have “frustrat[ed] [his] efforts” to identify Doe, provided untimely discovery
responses, changed their story about Doe’s identity, and shifted the blame for hiding
and deleting his Facebook posts to an algorithm. (Id. at 2–4.) Plaintiff maintains that

Defendants will not suffer prejudice if his motions are granted because “[t]here are no
statute[-]of[-]limitations concerns,” “Defendants created the necessity for” the
proposed amendment, Plaintiff generally does not foresee the need to enlarge the
discovery deadline, and the proposed amendment does not affect the qualified-
immunity issue. (Id. at 5.)

APPLICABLE STANDARDS
Although courts “give liberal construction” to documents filed by pro se
plaintiffs, Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007), pro se plaintiffs are
still “required . . . to conform to procedural rules,” Loren v. Sasser, 309 F.3d 1296, 1304

(11th Cir. 2002). See Cummings v. Dep’t of Corr., 757 F.3d 1228, 1234 n.10 (11th Cir.
2014) (“The right of self-representation does not exempt a party from compliance with
relevant rules of procedural and substantive law.” (quoting Birl v. Estelle, 660 F.2d 592,
593 (5th Cir. 1981))).
Regarding Plaintiff’s motions to amend and to enlarge the scheduling order,
“where a party’s motion to amend [a complaint] is filed after the deadline for such
motions, as delineated in the court’s scheduling order, the party must show good cause
why leave to amend the complaint should be granted.” Smith v. Sch. Bd. of Orange

Cnty., 487 F.3d 1361, 1366 (11th Cir. 2007); see Fed. R. Civ. P. 16(b)(4) (“A schedule
may be modified only for good cause and with the judge’s consent.”). “This good[-
]cause standard precludes modification unless the schedule cannot be met despite the
diligence of the party seeking the extension.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417,

1418 (11th Cir. 1998) (quotation omitted). “If a party was not diligent, the good[-
]cause inquiry should end.” Id. (alterations adopted) (quoting Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).
Regarding the fictitious Defendant in Plaintiff’s second amended complaint,
“[a]s a general matter, fictitious-party pleading is not permitted in federal court.”

Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010); see Weiland v. Palm Beach
Cnty. Sheriff’s Off., 792 F.3d 1313, 1318 n.4 (11th Cir. 2015) (“Because the ‘John Doe
Deputies’ are not proper parties to this action, we will not mention them again.”). A
“limited exception to this rule” applies “when the plaintiff’s description of the
defendant is so specific as to be[,] at the very worst, surplusage.” Richardson, 598 F.3d

at 738 (quotation omitted). The description “must be more specific than [the
defendant]’s title. The proposed defendant must actually exist, and the complaint
must describe the person to be sued so that the person could be identified for service.”
Scott v. Miami Dade County, No. 21-13869, 2023 U.S. App. LEXIS 16204, at *20 (11th
Cir. June 27, 2023) (citation and quotation omitted).
ANALYSIS
The court first discusses Plaintiff’s interrelated motions to amend and to enlarge

the scheduling order and then explains the dismissal of Plaintiff’s claims against Doe.
1. Plaintiff’s Motions to Amend and to Enlarge the Scheduling Order
The court denies Plaintiff’s interrelated motions to amend and to enlarge the
scheduling order because Plaintiff has not established the requisite good cause for
amending a pleading after a scheduling order’s deadline for doing so. See Fed. R. Civ.

P. 16(b)(4); Smith, 487 F.3d at 1366. Plaintiff was not diligent in discovering Doe’s
identity. See Sosa, 133 F.3d at 1418. Although Plaintiff criticizes Defendants for
impeding his efforts to identify Doe, (Dkt. 56-1 at 2–4), Plaintiff did not “serve his first
requests for discovery” until April 15, 2024, (Dkt. 40 at 3; accord Dkt. 41 ¶ 5)—more
than seven months after he initiated this action, (see Dkt. 1), and five months after the

court advised him: “Parties who elect to for[]go discovery on the merits of any claim
or defense due to the pendency of a dispositive motion or for any other reason, without
leave of [the c]ourt, will not be entitled to an extension,” (Dkt. 18 at 2). Despite the
court’s advice, Plaintiff now seeks an extension of the deadline for motions to add
parties or to amend pleadings even though he elected to forgo discovery, without the

court’s leave, pending resolution of the qualified-immunity issue raised in the motion
to dismiss. (See Dkt. 40 at 2, 4; Dkt. 56-1 at 1.) However, taking “too long to conduct
discovery . . . is not due diligence” and “thus not good cause.” MidAmerica C2L Inc. v.
Siemens Energy Inc., No. 20-11266, 2023 U.S. App. LEXIS 7690, at *46–47 (11th Cir.
Mar. 31, 2023); see also Ashmore v. Sec’y, Dep’t of Transp., 503 F. App’x 683, 686 (11th
Cir. 2013) (discerning no abuse of discretion when the district court denied the
plaintiff’s motion for an extension given the plaintiff’s “considerable delay

in . . . beginning the discovery process”).
Moreover, Plaintiff’s motions fail to confirm that “all parties agree that
[Plaintiff’s requested] extension will not affect the . . . trial date” and that “no party
will use the granting of the extension in support of a motion to extend another date or
deadline.” (Dkt. 18 at 6–7.) Indeed, Chitwood and the County assert that

“[e]xtending the deadline to amend pleadings and allowing the addition of four new
parties at this late stage of the proceedings would render the current scheduling order
and trial date impractical,” (Dkt. 62 at 3; accord Dkt. 61 at 8), and the court agrees with
this assertion. Cf. McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809–10 (9th Cir. 1988)

(discerning no abuse of discretion when the district court denied the plaintiffs leave to
amend because the “delay and expense” resulting from the amendment “would have
prejudiced [the] defendants, who were entitled to rely on a timely close of discovery
and a near-term trial date”). Accordingly, Plaintiff’s motions are denied.
2. Plaintiff’s Claims Against Doe

Because Plaintiff’s motions are denied, the second amended complaint remains
the operative complaint. The second amended complaint lists Doe as a Defendant
and describes him as “an unidentified employee of Volusia Sheriff’s Office” who
allegedly acted “under Chitwood’s direction” to delete and hide Plaintiff’s Facebook
posts. (Dkt. 43-1 ¶¶ 8, 97; accord id. ¶¶ 9, 103, 105, 111, 120, 123, 126, 129, 132, 136,
140, 142-43, 145, 158, 161-66; see also id. at 1.) This description is not specific enough
to overcome the general prohibition on fictitious-party pleading. See Richardson, 598
F.3d at 738; Scott, 2023 U.S. App. LEXIS 16204, at *20. It is akin to identifying Doe
by a job title, for example social-media administrator, and fails to narrow down Doe’s
identity to just one individual, as demonstrated by Plaintiffs attempt in the proposed
third amended complaint to replace Doe with four named individuals who had
administrator access to the Volusia Sheriff's Office Facebook account. (See Dkt. 56-1
at 4, 12; Dkt. 56-3 at 1.) When “descriptions include only ... a title that is held by
many individuals,” they “fall well short of” the required specificity. Vielma v. Gruler,
808 F. App’x 872, 880 (11th Cir. 2020). Thus, the court dismisses without prejudice
the claims against Doe in the second amended complaint. See Barefield v. Dunn, 688
F. Supp. 3d 1026, 1114 (M.D. Ala. 2023) (“[The plaintiff] has not provided sufficient
information to permit service upon the alleged fictitious defendants. Accordingly, all
unknown Defendants will be dismissed without prejudice at this time.”).
CONCLUSION
Accordingly:
1. Plaintiff's motions (Dkts. 55 & 56) are DENIED.
2. The claims against Doe in Plaintiff's second amended complaint (Dkt. 43-1) are
DISMISSED without prejudice.
ORDERED in Orlando, Florida, on October 22, 2024.

-9-

Copies furnished to:

Unrepresented Parties
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10643326. Public record. Not legal advice.