Hill v. Hester

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

TONY L. HILL,

Plaintiff,

v. Case No. 8:22-cv-2828-TPB-SPF

ROGER HESTER, et al.,

Defendants.

/

ORDER GRANTING DEFENDANT ROGER HESTER’S MOTION TO

DISMISS FOURTH AMENDED COMPLAINT

This matter is before the Court on Defendant Roger Hester’s Motion to

Dismiss the Fourth Amended Complaint, filed on June 24, 2024. (Doc. 64). On July

26, 2024, pro se Plaintiff Tony L. Hill filed a response in opposition to the motion.

(Doc. 66). After reviewing the motion, court file, and the record, the Court finds as

follows:

Background

This action arises from Hill’s confinement at Zephyrhills Correctional

Institution, a prison in Pasco County, Florida. Hill alleges that from February 2021

to February 2024, he lived in a dorm with a leaky roof, “mold and mildew

infestations,” “multiple broken windows,” “no heat or central [air conditioning],” and

“heavy flooding.” These conditions allegedly caused Hill to suffer “sinus damage,”

hay fever, headaches, “respiratory problems,” and “joint pain.” Moreover, at an

unspecified date, Hill allegedly slipped and fell in the dorm, injuring his hip.

Hill separately claims that after he filed this lawsuit, prison officials issued

false disciplinary charges against him. The charges alleged that Hill disobeyed

orders by failing to be “inspection ready” during a cell search. Specifically, he was

accused of “not hav[ing] his bunk made.” Hill appears to contend that the charges

were issued both because he filed this lawsuit and because he is a “minority colored”

“Orthodox Jew.” According to Hill, he “beat” the charges by calling “seven

witnesses” and submitting exculpatory “audio/video footage.” Hill also claims that

his “postal mail” and “legal parcels” have been withheld from him.

Based on these allegations, Hill asserts a wide variety of claims under both

federal and state law. For example, he alleges violations of the First through

Fourteenth Amendments, the Fair Housing Act, the federal RICO statutes,

unidentified “city” and “state code enforcement laws,” and unidentified federal

statutes concerning “hazardous mold/mildew” and “mismanagement of federal

funds.”

The operative complaint names five Defendants in their individual and

official capacities: Warden Roger Hester, “Head Maintenance Man” Jeff Johnson,

Assistant Warden C. Welch, Colonel E. Graff, and Secretary Ricky Dixon. Hill

alleges that “the defendants” failed to “fix” the leaky roof and other “dangerous”

conditions in his dorm. He also claims that the Defendants “retaliated with

discrimination” after he filed this lawsuit. As relief, Hill seeks “$1.357 million” in

compensatory damages.

Before service of process, the Court directed Hill to file an amended

complaint. The Court later allowed Hill to file a second amended complaint. Warden

Hester subsequently moved to dismiss, but before the Court had an opportunity to

rule on the motion, Hill filed a third amended complaint. The Court dismissed the

second amended complaint for failure to state a claim and struck the third amended

complaint as unauthorized.

With the Court’s permission, Hill filed a fourth amended complaint. Warden

Hester1 again moves to dismiss, arguing that (1) Hill impermissibly seeks to add

new defendants and claims, (2) the fourth amended complaint is an impermissible

shotgun pleading, and (3) Hill’s claims are barred by qualified immunity and the

Eleventh Amendment.

Legal Standard

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a

short and plain statement of the claim showing that the [plaintiff] is entitled to

relief.” Fed. R. Civ. P. 8(a). “Although Rule 8(a) does not require ‘detailed factual

allegations,’ it does require ‘more than labels and conclusions’; a ‘formulaic

recitation of the cause of action will not do.’” Young v. Lexington Ins. Co., No. 18-

62468, 2018 WL 7572240, at *1 (S.D. Fla. Dec. 6, 2018), adopted by 2019 WL

1 The other four Defendants—Johnson, Assistant Warden Welch, Colonel Graff, and

Secretary Dixon—have not been served. Nevertheless, the Court may dismiss claims

against them as facially deficient under the screening provisions of 28 U.S.C. § 1915A. See

Williams v. PA Dep’t of Corr., No. 1:15-cv-975, 2019 WL 2407996, at *5 (M.D. Pa. Apr. 8,

2019) (noting that, under § 1915A, a court may “consider the defendants’ motion to dismiss

as it applies to [plaintiff’s] claims against all defendants, and not just those who have been

served”), adopted by 2019 WL 2387196 (M.D. Pa. June 6, 2019).

1112274 (S.D. Fla. Jan. 9, 2019) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007)). In order to survive a motion to dismiss, factual allegations must be

sufficient “to state a claim for relief that is plausible on its face.” Twombly, 550 U.S.

at 555.

When deciding a Rule 12(b)(6) motion, the court’s scope of review is limited to

the four corners of the complaint. St. George v. Pinellas County, 285 F.3d 1334, 1337

(11th Cir. 2002). However, a document attached to the pleading as an exhibit or

referred to in the complaint may be considered if it is central to the plaintiff’s claim

and the authenticity of the document is not challenged. See Brooks v. Blue Cross &

Blue Shield, 116 F.3d 1364, 1369 (11th Cir. 1997) (“Where the plaintiff refers to

certain documents in the complaint and those documents are central to the

plaintiff's claim, then the Court may consider the documents part of the pleadings

for purposes of Rule 12(b)(6) dismissal . . . .”). Furthermore, when reviewing a

complaint for facial sufficiency, a court “must accept [a] [p]laintiff’s well pleaded

facts as true, and construe the [c]omplaint in the light most favorable to the

[p]laintiff.” Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D. Fla. 1995)

(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should

concern only the complaint’s legal sufficiency and is not a procedure for resolving

factual questions or addressing the merits of the case.” Am. Int’l Specialty Lines Ins.

Co. v. Mosaic Fertilizer, LLC, No. 8:09-cv-1264-RAL-TGW, 2009 WL 10671157, at *2

(M.D. Fla. Oct. 9, 2009) (Lazzara, J.).

Because Hill is proceeding pro se, the Court more liberally construes the

pleadings. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). However, a pro se

plaintiff must still conform to procedural rules, and the Court does not have “license

to act as de facto counsel” on behalf of a pro se plaintiff. United States v. Padgett,

917 F.3d 1312, 1317 (11th Cir. 2019).

Analysis

The fourth amended complaint must be dismissed because it constitutes a

shotgun pleading. Although Hill has had several opportunities to amend his

complaint, none of the prior dismissals rested on shotgun pleading grounds. The

Court will therefore grant Hill one final opportunity to amend his complaint.2 See

Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018) (“In the special

circumstance of non-merits dismissals on shotgun pleading grounds, we have

required district courts to sua sponte allow a litigant one chance to remedy such

deficiencies.”).

“Shotgun pleadings violate Rule 8, which requires ‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ by fail[ing] to

one degree or another . . . to give the defendants adequate notice of the claims

against them and the grounds upon which each claim rests.” Id. at 1294-95. The

Eleventh Circuit has identified four types of shotgun pleadings: (1) “a complaint

containing multiple counts where each count adopts the allegations of all preceding

2 Because the Court dismisses the fourth amended complaint as a shotgun pleading, it

declines to address Warden Hester’s other arguments for dismissal.

counts”; (2) a complaint that is “replete with conclusory, vague, and immaterial

facts not obviously connected to any particular cause of action”; (3) a complaint that

fails to “separat[e] into a different count each cause of action or claim for relief”; and

(4) a complaint that “assert[s] multiple claims against multiple defendants without

specifying which of the defendants are responsible for which acts or omissions, or

which of the defendants the claim is brought against.” Weiland v. Palm Beach Cty.

Sheriff’s Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015).

The fourth amended complaint is a shotgun pleading. It “assert[s] multiple

claims against multiple defendants without specifying which of the defendants are

responsible for which acts or omissions.” Id. at 1323. For example, Hill asserts that

“all defendants” violated the First through Fourteenth Amendments by failing to

“fix” the conditions in the dorm. But he makes no distinction among the five named

Defendants. It is thus unclear how each Defendant was responsible for the allegedly

unconstitutional living conditions. Hill likewise alleges that the Defendants

“retaliated with discrimination” after he filed this lawsuit, but he again fails to

describe how each defendant retaliated against him. This lack of specificity deprives

the Defendants of “adequate notice of the claims against them and the grounds

upon which each claim rests.” Id.; see also Magluta v. Samples, 256 F.3d 1282, 1284

(11th Cir. 2001) (“The complaint is replete with allegations that ‘the defendants’

engaged in certain conduct, making no distinction among the fourteen defendants

charged, though geographic and temporal realities make plain that all of the

defendants could not have participated in every act complained of.”); Westley v.

Alberto, 703 F. App’x 727, 732 (11th Cir. 2017) (complaint constituted impermissible

shotgun pleading because it “accused strings of defendants of engaging in a broad

conspiracy to harm [plaintiff], but rarely if ever did [it] identify the specific actions

taken by any individual defendant”).

The fourth amended complaint is also “replete with conclusory, vague, and

immaterial facts not obviously connected to any particular cause of action.”

Weiland, 792 F.3d at 1322. Hill states, for example, that he is a “three-time

founder/CEO” who has “master[ed] all trades, plumbing, electric, carpentry, roofing,

central heating, and A/C.” He also discusses the “Five Books of Moshe/Mose” and

quotes the Declaration of Independence. The inclusion of these (and other)

immaterial facts requires the Court “to sift through the facts presented and decide

for [itself] which [a]re material to the particular cause of action asserted, a difficult

and laborious task indeed.” Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir.

1991), overruled on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S.

639 (2008).

Making matters worse, Hill cites a bewildering variety of federal and state

laws—including the First through Fourteenth Amendments—but fails to explain

how his factual allegations establish violations of those laws. This style of pleading

makes it “virtually impossible to know which allegations of fact are intended to

support which claims for relief.” Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty.

Coll., 77 F.3d 364, 366 (11th Cir. 1996).

Therefore, the Court dismisses the fourth amended complaint in its entirety

as a shotgun pleading. In an abundance of caution, the Court grants Hill one final

opportunity to amend. If he chooses to amend, Hill must allege facts that show how

each named defendant personally participated in the activity that allegedly violated

his rights. He may not indiscriminately lump all the Defendants together.

Furthermore, Hill must avoid irrelevant factual allegations, and he must refrain

from including references to laws and statutes that have no bearing on his claims.

Instead, he should focus on providing “a short and plain statement of [each] claim

showing that [he] is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Accordingly, it is

ORDERED, ADJUDGED, AND DECREED:

1. Warden Hester’s Motion to Dismiss the Fourth Amended Complaint (Doc.

64) is GRANTED.

2. The fourth amended complaint (Doc. 58) is DISMISSED WITHOUT

PREJUDICE.

3. Hill is DIRECTED to file a fifth amended complaint, if he can do so in

good faith, on or before December 23, 2024. Failure to file a fifth amended

complaint as directed will result in this Order becoming a final judgment.

See Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co.,

953 F.3d 707, 719-20 (11th Cir. 2020). This will be Hill’s final opportunity

to amend his complaint.

4. The Clerk shall mail to Hill a copy of the standard prisoner civil rights

complaint form.

DONE and ORDERED in Chambers, in Tampa, Florida, this 3rd day of

December, 2024.

TOM BARBER

UNITED STATES DISTRICT JUDGE

Page 9 of 9