Bright v. Contractors Access Equipment Co.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

LEON BRIGHT,

Plaintiff,

v. Case No. 8:24-cv-2107-WFJ-LSG

CONTRACTORS ACCESS

EQUIPMENT CO., et al,

Defendants.

___________________________________/

REPORT AND RECOMMENDATION

The pro se plaintiff Leon Bright1 moves to proceed in forma pauperis. Doc. 2.

Bright sues defendants Contractors Access Equipment Company, Daniel Clark,

Strategic Comp, Andre LNU,2 Great American Insurance Company, Dr. Tootle

(Concentra Urgent Care), Dr. Lee (Baycare Urgent Care), and Jonathan Rostein.

Doc. 5. Because the complaint fails to state a claim upon which relief may be

1 Having filed more than eighteen cases in the Middle District of Florida, Bright is a frequent pro se

litigant in this Court. See Bright v. Derringer, Case No. 3:08-cv-652-TJC-MCR; Bright v. Derringer,

Case No. 3:08-cv-754-VMC-HTS; Bright v. Strickland, Case No. 8:07-cv-984-SDM-MAP; Bright v.

Frix, Case No. 8:12-cv-1163-MSS-MAP; Bright v. City of Tampa, Case No. 8:14-cv-1074-MSS-EAJ;

Bright v. City of Tampa, Case No. 8:14-cv-1774-EAK-TBM; Bright v. Officer Graham, Case No. 8:14-cv-

1775-VMC-EAJ; Bright v. Zeigler, Case No. 8:15-cv-EAK-JSS; Bright v. Thomas, 8:16-cv-1035-EAK-

MAP; Bright v. City of Tampa, Case No. 8:18-cv-1123-SDM-CPT; Bright v. Kast Construction Co., LLC,

Case No. 8:19-cv-JSM-SPF; Bright v. Hillsborough County, Case No. 8:19-cv-2274-SDM-CPT; Bright

v. Popeye’s Louisiana Kitchen, Case No. 8:19-cv-2347-MSS-CPT; Bright v. City of Tampa, Case No.

8:20-cv-1131-CEH-UAM; Bright v. Kast Construction Co., LLC, Case No. 8:20-cv-1209-MSS-SPF;

Bright v. Thomas, 822-cv-24-CEH_MRM; Bright v. Argos Cement USA, LLC, Case No. 8:22-cv-985-

CEH-AAS; Bright v. Robologistics Co., 8:23-cv-2414-TPB-TGW.

2 The Court interprets this to mean “last name unknown.”

granted, I recommend denying Bright’s motion to proceed in forma pauperis and

dismissing without prejudice Bright’s amended complaint. Doc. 5. I further

recommend denying without prejudice Bright’s request to invoke the services of the

U.S. Marshal. Doc. 6.

I. LEGAL STANDARD

A plaintiff must pay a filing fee to commence a civil action in federal court. 28

U.S.C. § 1914(a). However, with the Court’s authorization, a litigant may proceed in

forma pauperis, or without pre-paying the requisite filing fee. 28 U.S.C. § 1915(a)(1).

Under 28 U.S.C. § 1915, a litigant may commence his action “by filing in good faith

an affidavit stating . . . that he is unable to pay the costs of the lawsuit.” Neitzke v.

Williams, 490 U.S. 319, 324 (1989). After reviewing the affidavit to determine the

economic status of the litigant, the Court must review and dismiss if the action is

frivolous or malicious, fails to state a claim upon which relief may be granted, or

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

§ 1915(e)(2)(B)(i)–(iii); Martinez v. Kristi Cleaners, Inc., 364 F.3d 1305, 1307 (11th Cir.

2004) (citation omitted); Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). The

Court may dismiss a complaint if the plaintiff’s legal theories are meritless or if the

complaint’s factual allegations fail to state a plausible claim for relief. Thompson v.

Rundle, 393 F. App’x 675, 678 (11th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (per curiam)

(citations omitted).

A complaint must contain a short and plain statement of the grounds for the

Court’s jurisdiction, a short and plain statement of the claim showing the pleader’s

entitlement to relief, and a demand for the relief sought. FED. R. CIV. P. 8(a)(1)–(3);

McCurry v. Metro. Life Ins. Co., 208 F. Supp. 3d 1251, 1255 (M.D. Fla. 2016) (holding

that Rule 8 of the Federal Rules of Civil Procedure contains “[t]he bare minimum a

plaintiff must set forth in his complaint.”). A sufficient pleading must “state its

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

of circumstances,” and have “each claim founded on a separate transaction or

occurrence . . . be stated in a separate count.” FED. R. CIV. P. 10(b). These pleading

requirements

work together to require the pleader to present his claims discretely and

succinctly, so that his adversary can discern what he is claiming and

frame a responsive pleading, [and so that] the court can determine

which facts support which claims and whether the plaintiff has stated

any claims upon which relief can be granted.

Fikes v. City of Daphne, 79 F.3d 1079, 1082 (11th Cir. 1996).

Dismissal for failure to state a claim is appropriate if the facts, as pleaded, fail

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

678 (2009). A plaintiff demonstrates that his claims have a factual basis by

specifically describing “what a defendant did that violated the law.” Brown v. McLeod,

No. 8:23-cv-741-CEH-NHA, 2024 WL 1744304, at *2 (M.D. Fla, Apr. 1, 2024), R. &

R. adopted, No: 8:23-cv-741-CEH-UAM, 2024 WL 1743322, at *1 (M.D. Fla. Apr.

23, 2024). The factual allegations must provide enough information to lift the

plaintiff’s claims above the speculative level, that is, more than “unadorned, the-

defendant-unlawfully-harmed-me” accusations. Ashcroft, 556 U.S. at 678; Rivell v.

Priv. Health Care Sys. Inc., 520 F.3d 1308, 1309 (11th Cir. 2008) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). In other words, the plaintiff’s claims must

offer more than mere conclusions, labels, and characterizations; a procedurally

sufficient complaint alleges specific facts establishing the plaintiff’s entitlement to

relief. Ashcroft, 556 U.S. at 678.

If the complaint’s factual allegations are baseless or the legal theories are

without merit, the Court may dismiss the complaint before service of process. Carroll,

984 F.2d at 393. The Court must construe a pro se litigant’s pleadings liberally.

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Regardless of this

liberal construction, pro se litigants must adhere to the Federal Rules of Civil

Procedure and the Middle District of Florida’s Local Rules. McNeil v. United States,

508 U.S. 106, 113 (1993); Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).

II. ANALYSIS

A. Although Bright’s claims are timely, the complaint is procedurally and

substantively deficient.

Bright alleges3 claims under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e; 42 U.S.C. §§ 1981 and 1988; and the Age Discrimination in

Employment Act of 1967, 29 U.S.C. §§ 621–34. Doc. 5, ¶ 2. Bright submits an

August 5, 2024, “Notice of the Right to Sue” letter from the Equal Employment

3 Bright filed his initial complaint on September 6, 2024. Doc. 1. He subsequently filed an amended

complaint. Doc. 5. A plaintiff receives one opportunity to amend a pleading before service of the

process. FED. R. CIV. P. 15(a)(1); Hall v. Poppell, No.: 2:19-cv-878-FtM-38NPM, 2020 WL 814001,

at *1 (M.D. Fla. Feb. 19, 2020). Thus, this order analyzes Bright’s amended complaint, Doc. 5.

Opportunity Commission with his complaint. Doc. 4. Doc. 5, pp. 4, 7. This letter

establishes that Bright exhausted his administrative remedy before suing and that this

action is timely. See 42 U.S.C. § 2000e–5(f)(1); Wilkerson v. Grinnell Corp., 270 F.3d

1314, 1317 (11th Cir. 2001).

Bright arranges his claims in separate, numbered counts and presents his

allegations in short, numbered paragraphs. Doc. 5. Each count identifies the

defendants subject to that claim. Doc. 5. Thus, Bright’s complaint partially conforms

to the structural requirements of Rule 10. See FED. R. CIV. P. 10. However, as

explained below, Bright’s amended complaint remains procedurally deficient,

contains vague and conclusory allegations, and otherwise fails to state a claim for

relief. See Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321–23 (11th Cir.

2015); Ashcroft, 556 U.S. at 678; Thompson, 393 F. App’x at 678.

B. Bright’s federal claims in counts one, two, three, four, and seven fail to

state a claim.

In counts one and two, Bright claims that he “suffered an adverse employment

action” in violation of Title VII and Section 1981. Doc. 5, ¶¶ 29–44. Specifically,

Bright claims that Contractors Access Equipment Company discriminated against

and wrongfully terminated him based on his race; retaliated against him based on his

injuries and attempt to obtain workers’ compensation; violated Florida’s workers’

compensation law; spoiled relevant evidence; and negligently operated equipment.

Doc. 5, ¶¶ 29–44. In count three, Bright claims that the defendant Andre LNU fired

Bright because of his known disability (Lupus) and because of Bright’s injuries from

a November 5, 2023, accident, in violation of the Americans with Disabilities Act

and Florida’s Workers’ Compensation Law. Doc. 5, ¶¶ 45–51. In count four, Bright

claims the defendants spoiled relevant evidence, which led to the denial of his

worker’s compensation claims. Doc. 5, ¶¶ 52–60. In count seven, Bright claims that

the defendants Dr. Lee, Dr. Tootle, and Strategic Comp engaged in a conspiracy to

deprive him of equal access to medical care in violation of 24 U.S.C. §§ 1981 and

1985. Doc. 5, ¶¶ 29–96. Bright asserts that both Dr. Lee and Dr. Tootle used racial

epithets against him and refused to provide medical attention. Doc. 5, ¶¶ 29–96.

Bright further asserts that the defendants conspired to obstruct his compliance with

worker’s compensation. Doc. 5, ¶¶ 29–96.

Counts one and two are procedurally deficient under Rule 8. Bright conveys

only general, conclusory statements that the defendants racially discriminated

against him. These counts contain no supporting factual allegations from which to

infer racial animus. Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245–46 (11th

Cir. 2015) (“To state a race-discrimination claim under Title VII, a complaint need

only ‘provide enough factual matter (take as true) to suggest intentional race

discrimination.’”).

Title VII of the Civil Rights Act of 1964 prohibits an employer’s failing or

refusing to hire, discharging, or otherwise discriminating against an individual “with

respect to his compensation, terms, or conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a)(1); Eliassaint v. RTG Furniture Corp., 551 F. Supp. 3d 1293, 1302–03

(M.D. Fla. 2021) (explaining that Section 1981 claims and Title VII claims are

analyzed under the same framework). Bright asserts he was “singled out and targeted

and harassed,” “retaliated against for complaining about conditions at the

workplace,” and that other employees were “treated differently and more favorably.”

Doc. 1, ¶¶ 33, 35, 43. However, a reasonable inference of racial discrimination

requires the plaintiff to allege facts which, if accepted as true, would show that these

events occurred, in whole or in part, because of Bright’s race (and not exclusively

because of his workers’ compensation claim). For example, in count three, which

alleges disability discrimination, Bright alleges that someone said to him, “niggers

don’t get free money.” Doc. 5 at ¶ 50. This statement is the kind of factual allegation

that, with some context, could support a claim of racial discrimination against his

employer. However, absent factual allegations supporting an inference of racial

animus by the defendants, counts one and two fail. See Jackson v. BellSouth

Telecomm., 372 F.3d 1250, 1262–63 (11th Cir. 2004); see also Ashcroft, 556 U.S. at

677–78; Rivell, 520 F.3d at 1309; Mitchell, 112 F.3d at 1490.

Count three suffers a similar deficit. Bright must separate his causes of action

into distinct counts. FED. R. CIV. P. 10(b). To state a claim for disability

discrimination under the ADA, a plaintiff must allege “sufficient facts to plausibly

suggest ‘(1) that he suffers from a disability, (2) that he is a qualified individual, and

(3) that a ‘covered entity’ discriminated against him on account of his disability.’”

Surtain, 789 F.3d at 1246 (quoting Cramer v. Fla., 117 F.3d 1258, 1264 (11th Cir.

1997)). A “disability” is a physical or mental impairment that substantially limits one

or more major life activities, whether the individual has a record of such an

impairment or is “regarded as having” such an impairment. Surtain, 789 F.3d at

1246–47. A “qualified individual” is one “‘who, with or without reasonable

accommodation, can perform the essential functions’ of h[is] employment.” Id.

Bright alleges that he suffers from Lupus and that he suffered a serious injury

from an accident while employed with Contractors Access Equipment Company.

Doc. 5, ¶ 48. However, Bright offers no further facts to substantiate a claim under the

ADA, for example, that he is a “qualified individual” who could perform the

essential functions of his job with or without a reasonable accommodation. See

Surtain, 789 F.3d at 1246–47; see also Ashcroft, 556 U.S. at 677–78; Corning v. LodgeNet

Interactive Corp, 896 F. Supp. 2d 1138, 1144 (M.D. Fla. 2012).

Additionally, count three includes claims under the ADA; Florida’s Workers’

Compensation Law, Section 440.01, et seq., Florida Statutes; and the FCRA, i.e.,

the Florida Civil Rights Act, Section 760.01, et seq., Florida Statutes. Bright failed to

separate these claims into different counts and did not describe factual allegations

supporting each claim. If claims are not clearly and individually defined, a defendant

cannot fairly understand the factual basis for each legal claim. Weiland, 792 F.3d at

1323 (“The unifying characteristic of all types of [deficient] pleadings is that they fail

. . . to give the defendants adequate notice of the claims against them and the

grounds upon which each claim rests.”)

In count four, Bright sues for “spoliation” and alleges that “all defendants”

were responsible for preserving video footage of the accident causing his injury.

Doc. 5, ¶ 54. Bright claims that the defendants’ failure to preserve the footage caused

him “great embarrassment” and led to his worker’s compensation claim denial.

Doc. 5, ¶ 57. However, no cause of action for “spoliation” exists under which Bright

can sue. Kubisiak v. Gualtieri, 723 F. Supp. 3d 1154, 1173 (M.D. Fla. 2024) (“There is

no independent cause of action for first-party spoliation of evidence in Florida.”)

(citations omitted). Historically, sanctions have been the remedy for the spoliation of

evidence. Id. The Court may impose sanctions against a party that fails to properly

preserve electronic information in anticipation of litigation. FED. R. CIV. P. 37(e).

To support a claim for sanctions based on spoliation of evidence, a party must

establish the following:

(1) the existence of a potential civil action; (2) a legal or contractual

duty to preserve evidence which is relevant to the potential civil action;

(3) destruction of that evidence; (4) significant impairment in the ability

to prove the lawsuit; (5) a causal relationship between the evidence

destruction and the inability to prove the lawsuit; and (6) damages.

Swofford v. Eslinger, 671 F. Supp. 2d 1274, 1280 (M.D. Fla. 2009) (citing Green Leaf

Nurser v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003).

Sanctions for spoliation are appropriate “only when the absence of evidence is

predicated on bad faith . . . ‘Mere negligence’ in losing or destroying the records is

not enough for an adverse inference[.]”. Id. (citations omitted). Accordingly, because

no standalone claim for spoliation exists, count four fails. However, if this case

proceeds to discovery, Bright may raise his spoliation claim by separate motion,

which must include facts and legal argument supporting the charge.

To sufficiently allege a civil conspiracy under Section 1985(3) in count seven,

Bright must allege facts supporting the following elements:

(1) a conspiracy; (2) for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal protection of the

laws, or of equal privileges and immunities under the laws; and (3) an

act in furtherance of the conspiracy; (4) whereby a person is either

injured in his person or property or deprived of any right or privilege of

a citizen of the United States.

Lucero v. Operation Rescue of Birmingham, 954 F.2d 624, 627 (11th Cir. 1992). Further,

section 1985(3) requires a showing that the defendants engaged in the alleged

conspiracy because of “some racial, or perhaps otherwise class-based, invidiously

discriminatory animus[.]” Id.

Bright appears to allege that defendants Dr. Tootle and Dr. Lee denied him

medical care based on his race. Doc. 5, ¶¶ 82–96. Bright explains that, on separate

occasions, Dr. Tootle and Dr. Lee used racial epithets against him and refused to

give him medical treatment, which he sought as part of his workers’ compensation

claim. Doc. 5, ¶¶ 82–96. However, though Bright contends that the defendants Dr.

Tootle, Dr. Lee, and Strategic Comp conspired to deprive him of medical attention

and “obstruct the process to comply with the workers compensation” policy, he

offers no allegation supporting the alleged conspiracy. Doc. 5, ¶¶ 92–94.

No factual allegation in count seven supports the claim that Dr. Tootle, Dr.

Lee, and Strategic Comp agreed “among themselves” to deprive Bright of any rights

or medical care. See Malloy v. Latey, No. 96-1657-CIV-T-17B, 1997 WL 658982, at *3

(M.D. Fla. Sept. 30, 1997) (holding that a plaintiff cannot establish a claim under

Section 1985(3) if he cannot allege the defendants engaged in a civil conspiracy); see

Lucero, 954 F.2d at 627. The conclusory allegations demonstrate no causal link

between the alleged conspiracy and racial animus he experienced. Without that link,

Bright’s claim under Section 1985(3) fails. See Lucero, 954 F.2d at 627; Malloy, 1997

WL 658982 at *3.

Bright includes in count seven a violation of 42 U.S.C. § 1981. Doc. 5, ¶ 80.

“To state a claim under § 1981 for interference with a right to contract, ‘a plaintiff

must identify an impaired contractual relationship under which the plaintiff has

rights.’” Jimenez v. WellStar Health Sys., 596 F.3d 1304, 1309 (11th Cir. 2010)

(citations omitted). Bright identifies no such relationship. Bright alleges defendants

Dr. Lee, Dr. Tootle, Strategic Comp, and Daniel Clark conspired to “obstruct the

process to comply with the workers compensation” policy and to “have Plaintiff’s

workers compensation claim dissipated and denied[.]” Doc. 5, ¶¶ 93–94. But Bright

provides no factual allegation showing either that a contract for medical care existed

or that the defendants sought to sabotage his worker’s compensation claim. Thus,

Bright’s claim under Section 1981 fails. See Jimenez, 596 F.3d at 1309.

C. Bright’s claims in counts five, six, and eight also fail.

Bright’s remaining claims, counts five, six, and eight, arise under Florida law.

Bright’s amended complaint invokes the Court’s federal question jurisdiction. 28

U.S.C. § 1331. The Court can exercise “supplemental jurisdiction over all other

claims that are so related to claims in the action within such original jurisdiction that

they form part of the same case or controversy.” 28 U.S.C. § 1367(a). However, the

Court may decline supplemental jurisdiction over state law claims if the Court “has

dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

Consequently, the Court need not exercise supplemental jurisdiction over Bright’s

remaining state claims if it dismisses Bright’s federal claims. 28 U.S.C. § 1367(c)(3);

see also Baggett v. First Nat. Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997)

(holding that dismissal of state law claims is strongly encouraged when federal

claims are dismissed before trial).

Furthermore, even if this Court chooses to exercise supplemental jurisdiction

over these claims, a liberal review of the claims shows that they, too, are

procedurally and substantively deficient. In count five, Bright alleges the defendants

engaged in “negligent mode of operation” for failure to prevent “an employee from

falling off the ledge or edge of [a] truck when strapping down [h]eavy [s]caffolding

[e]quipment.” Doc. 5, ¶ 64. He includes in this claim both Contractors Access

Equipment and Great American Insurance Company, however, the factually

allegations cannot plausibly apply to both. For example, although his employer likely

has a duty to provide a safe environment for its employees, his employer’s insurer

does not. See Farmer v. Humana, Inc., 582 F. Supp. 1176, 1185 (M.D. Fla. 2022)

(identifying the elements of a negligence claim).

In count six, Bright expands on his spoliation claim and alleges that attorney

Jonathan Rostein engaged in legal malpractice by acting adversarial, failing to

preserve video footage of Bright’s injury, and undermining Bright’s claims. Doc. 5, ¶

70–79. Yet, Bright provides no factual allegation about how Rostein’s conduct

affected the outcome of Bright’s state worker’s compensation claim. In his eighth and

final count, Bright claims he suffered damages, racism, and “indifference and pain

and emotional damages” in violation of the Florida Civil Rights Act of 1992. Doc. 5,

¶ 97–105. Like count six, Bright provides only conclusory allegations. His general

statements, such as the claim he “was treated like a dog in some other THIRD

WORLD COUNTRY IN ASIA,” or that he “suffered damages, racism and

indifference and pain and emotional damages to date and in the future,” do not

provide sufficient factual allegations suggesting the defendants intentionally

discriminated against him because of race. See Surtain, 789 F.3d 1239, 1245–46; see

also Jones v. United Space All., LLC, 494 F.3d 1306, 1310 (11th Cir. 2007) (finding that

courts should apply Title VII caselaw when interpreting claims under the FCRA);

Harper v. Blockbuster Ent. Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (holding a claim

that fails under Title VII also fails under the FCRA because the FCRA was patterned

after the federal framework). Thus, count eight should be dismissed for failure to

state a claim.

VI. CONCLUSION

Accordingly, I recommend (1) denying Leon Bright’s motion to proceed in

forma pauperis, Doc. 2; (2) dismissing without prejudice Bright’s amended complaint,

Doc. 5; (3) affording Bright leave to file an amended complaint that complies with

this order and the Federal Rules of Civil Procedure,’ see Holbrook v. Castle Key Ins. Co.,

405 F. App’x 459, 460 (11th Cir. 2010); and (4) denying without prejudice Bright’s

motion to invoke the services of the U.S. Marshal, Doc. 6. If Bright fails to file an

amended complaint within the time afforded by the District Judge, I recommend

closing the case.

REPORTED in Tampa, Florida, on this 6th day of December, 2024.

) Cc

Nat) 6 Le

NDSAY S. GRIKF

United States Magistrate Judge

“ Bright’s eighteen previous forays in this Court undoubtedly provide him ample familiarity with the

procedural and substantive rules of pleading. Accordingly, Bright should promptly and assiduously

apply the rules to any amended pleading.

14

NOTICE TO PARTIES

A party has fourteen days from the day of service of this report either to file

written objections to the proposed findings and recommendation or to seek an

extension of the fourteen-day deadline. 28 U.S.C. § 636(b)(1)(C). Under Eleventh

Circuit Rule 3-1, a party failing to object to a magistrate judge’s findings or

recommendations “waives the right to challenge on appeal the district court’s order

based on unobjected-to factual and legal conclusions.” 11th Cir. R. 3-1; 28 U.S.C.

§ 636(b)(1). If the parties wish to expedite the resolution of this matter, they may

promptly file a joint notice of no objection.